Daniel Fisher, who writes the Full Disclosure blog at Forbes.com, posted an article last Friday titled Has Scalia Killed the Class Action? Fisher’s article one of the best I’ve seen in discussing the potential practical impact that the Supreme Court’s recent class arbitration waiver decision in AT&T Mobility v. Concepcion may have on future consumer class action litigation. I highly recommend it.
Although much remains to be seen about Concepcion‘s long-term impact, from a practitioner’s point of view, two things are clear to me.
First, the consumer class action is far from dead. As Fisher’s article points out, there are many cases that won’t implicate arbitration clauses in consumer contracts at all, such as those involving retail products. Moreover, even setting aside the prospect of executive branch or Congressional action in effectively overruling Concepcion, there are a variety of legal arguments that are sure to be raised for invalidating or avoiding enforcement of class arbitration waivers in the lower courts, notwithstanding the Supreme Court’s decision. There are countless theories, many of which have yet to be dreamed up by enterprising plaintiffs’ lawyers, for why a consumer class action in a particular case should be allowed to go forward in court notwithstanding an arbitration provision.
Ed. Note: And don’t miss this great comment and follow-up to the post.