Prolific class action scholar (and former Scalia clerk) Brian Fitzpatrick of Vanderbilt Law has just posted to SSRN an interesting new paper foreseeing and lamenting the effects of his former boss's handiwork in AT&T Mobility v. Concepcion and American Express v. Italian Colors (both cases in which I had the privilege of representing the losing plaintiffs). Fitzpatrick's article is especially timely because it buttresses the CFPB's recently released study on the effects of mandatory arbitration clauses in consumer contracts. Here's the abstract of Fitzpatrick's piece, which is forthcoming in the Arizona Law Review:
In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court’s decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to class action waivers — and that one big category of class action plaintiffs (shareholders) remain insulated from Concepcion and American Express altogether — I still see every reason to believe that businesses will eventually be able to eliminate virtually all class actions that are brought against them, including those brought by shareholders.