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:
Amicus Briefs Supporting Respondents:
American Association of Justice
Constitutional Accountability Center
Mary Grace Coneff, et al. (Named Plaintiffs in Related Case)
National Academy of Arbitrators
Professors of Civil Procedure and Complex Litigation
Professors of Federal Jurisdiction
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)
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
- "[I]t doesn't look as though there are too many votes at the high court to do away with the right of consumers to band together to sue the great American manufacturers of fine print." Dahlia Lithwick, Can You Hear Them Now? The Supreme Court reads the fine print on your cell phone contract, Slate
- "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:
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:
DRI--The Voice of the Defense Bar
CTIA--The Wireless Association
Lower Court Decisions:
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