AT&T Mobility LLC v. Vincent and Liza Concepcion

Enforceability of Class-Action Bans in Arbitration Agreements


In AT&T v. Concepcion, the U.S. Supreme Court will decide whether corporations can ban class actions in the fine print of their contracts with consumers and employees. In many cases, this would cut off the only meaningful method to redress widespread discrimination, fraud, or other violations of the law. The case therefore has potentially broad implications for the enforcement of both civil rights and consumer protections.

Class-action bans are contract provisions that purport to deny consumers and workers the right to seek relief as a class. Many courts have deemed these provisions unconscionable under state law where precluding class actions would have the effect of allowing companies to get away with widespread wrongdoing, particularly where the damages would be too small to justify pursuing individual claims. The legal question presented in AT&T v. Concepcion is whether the Federal Arbitration Act of 1925 precludes the States from declining to enforce class-action bans when the bans are embedded within arbitration agreements. View the electronic case docket here.

Deepak Gupta is lead counsel for the respondents. The Supreme Court heard arguments in the case on November 9, 2010. A decision is expected anytime between now and June 2011.

Oral Argument
Transcript of Oral Argument
Summaries: Lawrence Cunningham (Concurring Opinions), Jean Sternlight (ADR Prof Blog), Steve Berk (Corporate Observer)

Merits Briefs:

Respondents' Merits Brief

AT&T's Merits Brief

AT&T's Reply

Amicus Briefs Supporting Respondents:

AmicusAmerican Antitrust Institute

American Association of Justice

Constitutional Accountability Center

Lawyers' Committee for Civil Rights Under Law, Employee Rights Advocacy Institute for Law & Policy, National Employment Law Project, National Employment Lawyers Association, National Partnership for Women & Families, and National Women's Law Center

Legal Aid Society of D.C., AARP, Center for Responsible Lending, Center for Science in the Public Interest, Consumer Action, Consumer Federation of America, National Association of Consumer Advocates, National Consumer Law Center, National Consumers League, National Legal Aid and Defender Association, Public Good, U.S. Public Interest Research Group

Mary Grace Coneff, et al. (Named Plaintiffs in Related Case)

NAACP Legal Defense Fund

National Academy of Arbitrators

National Workrights Institute

Professors of Arbitration

Professors of Civil Procedure and Complex Litigation

Professors of Contract Law

Professors of Federal Jurisdiction

States of Illinois, Maryland, Minnesota, Montana, New Mexico, Tennessee, Vermont, and the District of Columbia

Amicus Briefs Supporting Petitioner:

American Bankers Association, American Financial Services Association, Consumer Bankers Association, Financial Services Roundtable, and California Bankers Association (Alan Kaplinsky)

Center for Class Action Fairness

Chamber of Commerce of the United States (Roy Englert)

DirectTV, Comcast Corporation, and Dell Inc.

CTIA -- The Wireless Industry Association (Paul Clement)

DRI -- The Voice of the Defense Bar (Kevin Newsom)

Equal Employment Advisory Council

Law Professors (Andrew McBride)

New England Legal Foundation

Pacific Legal Foundation

South Carolina and Utah

Selected Commentary

  • "Yesterday’s oral argument in AT&T Mobility Services v. Concepcion—which the New York Times describes as '[t]he most significant business case of the Supreme Court term so far'—has dominated coverage of the Court. . . . Overall, post-argument predictions about the case’s outcome tilt toward a victory by respondents Vincent and Liza Concepcion, but not everyone was willing to make predictions based on the argument." SCOTUSblog  
  • "Recent Supreme Court decisions have generally favored the enforcement of arbitration agreements and have been wary of aspects of class-action litigations. But it was hardly clear at Tuesday’s arguments that those two trends would continue in the latest case." Adam Liptak, Supreme Court Weighs Class-Action Suits, New York Times
  • "A victory for consumers and class action litigators seemed possible on Tuesday as the Supreme Court heard arguments in a high-stakes dispute over clauses that block class actions as a way of resolving contract disputes." Tony Mauro, Class actions on the ropes? Not likely, National Law Journal
  • "Based on what was said during the argument, I predict a 8-1 or 7-2 vote for the consumers and California, with Alito dissenting and Roberts a toss up. Thomas, who never speaks at oral argument, will vote for the consumers and state on federalism grounds, as he always does in FAA cases." Lawrence Cunningham, Argument in Class Waiver Case Favors Consumers, States, Concurring Opinions
  • "The Supreme Court seemed disinclined to let companies use legal fine print to block class actions, with several justices suggesting they might defer to state courts that ruled in favor of consumers." Jess Bravin, Justices Question Contracts That Block Class Actions, Wall Street Journal
  • "AT&T's odds are mixed: ... Justices Clarence Thomas and Antonin Scalia are sympathetic to these cases due to their states' rights ideology. But no one will be surprised if AT&T and its big business backers prevail." Stephanie Mencimer, Consumer Protection's Citizens United, Mother Jones
  • "In sum, I think Respondents have to be pleased with how the argument went.  A significant number of Justices seemed to recognize that some arbitration provisions are unconscionable, and that second-guessing lower courts’ unconscionability rulings can raise some difficult federalism and administrative issues." Jean Sternlight, ADR Prof Blog
  • "While Chief Justice John Roberts and Justice Samuel Alito appeared this morning to join Mr. Pincus in trying to come up with support for preemption in this case, it appears that they may come up a few votes short (with the usual caveat that it is always a risky business to predict how the Court will rule based on oral argument)." Elizabeth Wydra, ACSblog.

Additional post-argument coverage:

David Savage, Supreme Court weighs whether consumers' small suits can be combined, Los Angeles Times

Robert Barnes, Justices hear case on class-action arbitration, Washington Post

Jeremy Hobson, Is banning class action lawsuits unconstitutional?, NPR Marketplace (interviewing David Lazarus of the L.A. Times)

Ashby Jones, Class-Action Lawyers Breathing Easier After High Court Argument, Wall Street Journal

Bill Mears, High court to decide dispute over taxes on 'free cell phone,' CNN

Mark Sherman, Court hears dispute over 'free' phone, Associated Press

Joan Biskupic, Supreme Court hears sales tax case on 'free' phone, USA Today

Jon Hood, The End of Class Actions?, Consumer Affairs

Greg Stohr, Consumer Arbitration case divides U.S. Supreme Court, BusinessWeek

Lawyers USA, Supreme Court hears AT&T class action waiver dispute, Daily Record

Brendan Fischer, Supreme Court Considers Corporate Right to Mandatory Arbitration, Center for Media and Democracy\

David Heath, High Court Ponders If Companies Can Force Consumers to Sign Away Right to Class-Action Suits, Center for Public Integrity

Erika Morphy, A lot hinges on SC's ruling in $30 cellphone sales case, E-Commerce Times

Scott Lemieux, Consumer Protection at the Supreme Court, The American Prospect

Nan Aron, Will the Supreme Court Grant Big Business a License to Steal

Ian Milhiser, The Supreme Court's One Thousandth Cut Against Consumers, Center for American Progress

Pre-argument coverage:

Brian Fitzpatrick, Supreme Court case could end class-action suits, San Francisco Chronicle, November 7, 2010

David Lazarus, Consumers' right to file class actions is in danger, Los Angeles Times, November 5, 2010

Amanda Becker, Supreme Court case involving class actions could affect waitresses' suit against Hooters, Washington Post, November 8, 2010

Matthew Hathaway, Plenty at Stake in Class Action Case Before Supreme Court, St. Louis Post-Dispatch, November 6, 2010

Alliance for Justice, AT&T v. Concepcion: Will the Supreme Court Give AT&T A License to Steal, November 4, 2010

Ed Mierzwinski, Next Up For the Supreme Court That Brought You Unlimited Corporate Campaign Cash: Do Consumers Have the Right to Band Together To Fight Corporate Crime?, Huffington Post, November 4, 2010

David Horton, AT&T v. Concepcion, PrawfsBlawg, November 1, 2010

American Constitution Society, The Stakes are High in AT&T V. Concepcion, ACSblog, October 23, 2010

CAC’s Brief explains the Constitutional mandate to preserve state laws protecting consumers from corporations’ unfair contracts, Constitutional Accountability Center, Text & History, October 7, 2010

Amicus Brief filed in AT&T Mobility LLC v. Concepcion, Bonnie Robin-Vergeer, Making Justice Real, October 7, 2010

First Monday: Corporate America's Favorite Court is Back in Session, Ian Millhiser, Center for American Progress, October 4, 2010

Business Issues Feature Prominently on Supreme Court's Docket, Amanda Becker, Washington Post, October 4, 2010

First Monday, Editorial, The New York Times, October 3, 2010

Big names, high stakes in quartet of pre-emption cases, Marcia Coyle, National Law Journal, September 22, 2010

Ford Takes The Lead In Assaulting Consumers And Small Businesses Via The National Chamber Litigation Center, Maxwell Kennerly, Litigation & Trial, August 10, 2010

Top-Side Amicus Briefs Filed in AT&T v. Concepcion, Consumer Law & Policy Blog, August 9, 2010

Will the Supreme Court Issue a Wildly Activist Decision in ATT Mobility v. Concepcion?, Paul Bland, Claire Prestel, and Melanie Hirsch, Consumer Law & Policy Blog, August 5, 2010

What to Make of the Second Circuit Voiding a Class Action Waiver Under California’s Discover Bank Rule?, Philip J. Loree Jr., July 23, 2010

Is the Supreme Court Ready to Validate Class Action Waivers?, Brian Kabateck and Evan Zucker, Los Angeles Daily Journal, July 20, 2010

Victory for Justice in Fensterstock, Lawrence Cunningham, Concurring Opinions, July 15, 2010

Your Vanishing Day In Court, Lawrence Cunningham, Concurring Opinions, June 24, 2010

Justices' Latest Arbitration-Friendly Ruling Sets Stage Fight Over Consumer Class Actions, Asher Hawkins, Forbes, June 21, 2010

Arbitration Showdown Looms Between Congress, Supreme Court: Congress, high court take opposing views on mandatory agreements, Marcia Coyle, National Law Journal, June 14, 2010

Supreme Court to Decide Rule on Class Waivers in Arbitration Clauses, James Morphy, Harvard Law School Forum on Corporate Governance and Financial Regulation, June 13, 2010

Class Action Waiver Roundup, ContractsProf Blog, June 3, 2010

Cert Granted in AT&T Mobility v. Concepcion, Jean Sternlight, Today's Workplace, May 26, 2010

Consumer Arbitration Draws U.S. High Court Review in AT&T Case, Greg Stohr, Businessweek, May 24, 2010

Arbitration and Class Actions, Eugene Volokh, Volokh Conspiracy, May 7, 2010

Arbitration and Class Actions, Eugene Volokh, Volokh Conspiracy, March 5, 2010

Arbitration and Class Actions, Eugene Volokh, Volokh Conspiracy, February 2, 2010

Cert-Stage Briefing:

AT&T's Petition for Certiorari (including Appendix)

Respondents' Brief in Opposition

Respondents' Supplemental Brief

Cert-Stage Amicus Briefs:

Chamber of Commerce

DRI--The Voice of the Defense Bar

CTIA--The Wireless Association

Pacific Legal Foundation

Lower Court Decisions:

Ninth Circuit Decision Below

California Supreme Court's Decision in Discover Bank v. Superior Court

Illinois Supreme Court's Decision in Kinkel v. Cingular Wireless

New Jersey Supreme Court's Decision in Muhammad v. County Bank of Rehoboth

Massachusetts Supreme Judicial Court's Decision in Feeney v. Dell

New Mexico Supreme Court's Decision in Fiser v. Dell Computer Corporation