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Paul Karlsgodt: Tenth Circuit Holds that Mere Allegation by Plaintiff of Intent Not to Seek More than $4,999,999.99 in Damages Is Not Dispositive of CAFA Jurisdiction

June 29, 2012 by Leave a Comment

Yesterday, the Tenth Circuit joined the majority of Circuit Courts of Appeals in holding that a plaintiff cannot conclusively avoid federal removal jurisdiction under the Class Action Fairness Act of 2005 (CAFA) by including in the complaint a statement of intention not to seek more than $4,999,999.99 in damages on behalf of the putative class.  In Frederick v. Hartford Underwriters Insurance Company, No. 12-1161 (10th Cir. June 28, 2012) the Tenth Circuit followed decisions from the First, Second, Fourth, Sixth, Seventh, Eighth, and Eleventh Circuits in holding that a Defendant may support jurisdiction by showing by a preponderance of the evidence that the amount in controversy exceeds $5 million, even if the plaintiff expressly pleads a lesser amount.  It rejected a more stringent “legal certainty” standard, which has been applied by the Ninth and Third Circuits.

The Frederick decision means that plaintiffs cannot foreclose federal jurisdiction in class actions through creative pleading in the Tenth Circuit.  However, the burden is still on the defendant to prove as a matter of fact that the amount at stake in the case exceeds $5 million.  Therefore, it also highlights the need for defense counsel to gather, plead, and be prepared to prove specific facts showing the amount at stake in the case.

It is always important to remember that proving the amount in controversy does not require the defendant to prove the damages that are likely to be awarded against it in the case (of course most defendants would say that this amount is zero).  Instead, it requires the defendant to establish the highest amount that the plaintiff class could conceivably win based on the legal claims presented, the relief sought (both damages and other relief sought expressly and damages that could legally flow from the claims presented), and the maximum potential value that the plaintiff could reasonably put on that relief.  The preponderance standard requires the defendant to prove facts that would cause more than $5 million to be awarded if the plaintiff proves the claims and potential theories of damages that flow from those claims.

Paul Karlsgodt is a partner at Baker Hostetler who focuses his practice on class action defense and other complex commercial litigation. He is editor and primary contributor to www.ClassActionBlawg.com, where this post originally appeared on June 28, 2012.
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Tenth Circuit: Proposed Class of Defective Car Owners Denied as Prudentially Moot

June 19, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Winzler v. Toyota Motor Sales U.S.A., Inc. on Monday, June 18, 2012.

The Tenth Circuit vacated the district court’s decision. Petitioner “brought state law claims against Toyota on behalf of a proposed nationwide class of 2006 Toyota Corolla and Toyota Corolla Matrix owners and lessees. She alleged that the cars harbored defective ‘Engine Control Modules’ (“ECMs”), making them prone to stall without warning. As relief, she asked for an order requiring Toyota to notify all relevant owners of the defect and then to create and coordinate an equitable fund to pay for repairs. . . . “Before addressing whether [Petitioner]‘s class should be certified, the district court held her complaint failed to state a claim and dismissed it. . . . And then, just as [Petitioner] began her appeal, Toyota announced a nationwide recall of 2005-2008 Toyota Corolla and Corolla Matrix cars to fix their ECMs. The ongoing recall is taking place under the auspices of the National Traffic and Motor Vehicle Safety Act. That statute obliges Toyota to notify owners of the defect and repair or replace any faulty parts at no cost. And the whole process is overseen by the National Highway Transportation Safety Administration (“NHTSA”), an agency of the Department of Transportation that can issue stiff fines if the company fails to carry out the recall to its satisfaction. Arguing that these statutory and regulatory processes promise [Petitioner] exactly the relief sought in her complaint, Toyota has asked this court to find that events have overtaken her suit and rendered it moot.”

“Because prudential mootness is arguably the narrowest of the many bases Toyota has suggested for dismissal, and because it is sufficient to that task, . . . [the Court granted] the motion to supplement the record and . . . following [the] general practice when finding a case moot (prudentially or otherwise) on appeal,” the Court vacated the district court’s judgment and remanded with instructions to dismiss the case as moot.

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Colorado Court of Appeals: District Court Erred in Denying Class Certification Where Homeowners’ Damages Were Different but Nexus Existed Between Claims

May 29, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in Devora v. Strodtman on May 24, 2012.

Class Action—Homeowners—Notice of Appeal—Typicality—Adequacy—CRCP 23(a)—Damages.

In this case involving allegations of deceptive trade practices, civil theft, and racketeering, plaintiffs Jesus Devora, Julian Martinez, and Manuel Moreno (collectively, homeowners) appealed the district court’s order denying their motion to certify the case as a class action lawsuit against defendants J. Mark Strodtman and JS Real Estate LLC. The judgment was vacated and the case was remanded.

Defendants built homes in Weld County that were purchased by homeowners. Homeowners alleged in their complaint that defendants induced them to buy homes under prices and terms they could not afford, misrepresented and failed to disclose loan financing terms, engaged in a pattern of racketeering, and intended to permanently deprive mortgage lenders of the proceeds defendants had received from the loans.

The Court of Appeals first determined whether plaintiffs’ notice of appeal was timely filed. Where a named plaintiff chooses not to file an interlocutory appeal of an order denying class certification under CRS § 13-20-901(1), the plaintiff does notwaive the right to appeal that order by requesting and obtaining a CRCP 54(b) certification of final judgment, or on a final judgment on the merits. Because homeowners chose not to appeal the district court’s order under CRS § 13-20-901(1), they had the option of awaiting a final judgment on the merits of their individual claims or requesting a CRCP 54(b) order. Homeowners obtained a Rule 54(b) order and filed a timely notice of appeal. Therefore, this Court had jurisdiction to consider plaintiffs’ appeal.

Homeowners contended that the district court erred in finding they did not meet the typicality and adequacy requirements of CRCP 23(a) because the class members had differing damages from one another. The class representatives, however, need to establish only “a nexus between the class representatives’ claims or defenses and the common questions of fact or law which unite the class” to meet the typicality requirement. The typicality requirement may be satisfied even though there is disparity in the damages claimed by the class representatives and the putative class members. Here, the district court erred as a matter of law in finding that homeowners had failed to prove the typicality element of CRCP 23(a), because their damages might or would be different from those of the potential class members. The district court did not make specific findings regarding the remaining requirements of CRCP 23(a) and (b)(3). Thus, it is unknown whether homeowners established those requirements. Therefore, the case was remanded to the district court for further findings of fact and a determination whether homeowners’ class action lawsuit should be certified.

Summary and full case available here.

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Colorado Court of Appeals: Trial Court Erred in Awarding State Farm Costs and Fees as Prevailing Party Based on Purely Procedural Victory on Class Certification

April 16, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Reyher v. State Farm Mut. Automobile Ins. Co. on April 12, 2012.

Jurisdiction—Final Order—Class Action—Prevailing Party—Costs.

Plaintiffs Pauline Reyher and Dr. Wallace Brucker appealed the trial court’s order awarding costs and attorney fees to defendant State Farm Mutual Automobile Insurance Company (State Farm), following the trial court’s dismissal of Reyher’s claims and denial of plaintiffs’ class certification motion. The order was reversed and the case was remanded with directions. During the briefing of this appeal, Reyher II was announced, reversing the dismissal of Reyher’s claims. At the time of this appeal, there were no class action claims pending in the trial court; however, the individual claims of Reyher and Dr. Brucker remained pending and unresolved.

State Farm argued that the Court of Appeals lacked jurisdiction over this appeal because the order awarding costs and fees was not a final, appealable order. The cost and fee order was related solely to the class certification claims and Reyher’s claims, which were both resolved by final orders pursuant to C.R.C.P. 54(b); the order was not based on any other claims pending in the trial court. Therefore, the cost and fee order was itself a final, appealable judgment.

Plaintiffs argued that the trial court prematurely determined that State Farm was the prevailing party under C.R.C.P. 54(d) based on its successful defense of class certification but before termination of the underlying litigation. The trial court erred to the extent that it awarded costs based on its misconception that it was required to do so and had no discretion in the matter. Additionally, whether a party has derived some of the benefits sought by the litigation requires an assessment in the context of the overall litigation. Therefore, because plaintiffs may yet obtain a judgment against State Farm on their individual claims, it was premature for the trial court to determine that State Farm was the prevailing party. Accordingly, the trial court erred in awarding State Farm its costs and fees as the prevailing party at this stage in the proceedings based on its purely procedural victory on the class certification. Plaintiffs also argued, State Farm conceded, and the Court of Appeals agreed that because the judgment dismissing Reyher’s claims was reversed in Reyher II, the costs and fees related to that dismissal also must be reversed.

Summary and full case available here.

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Tenth Circuit: Although Corporation Made False or Misleading Statements to the Market, It Did Not Act with Scienter

February 7, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in In re Level 3 Communications Inc. Securities Litigation on Monday, February 6, 2012.

The Tenth Circuit affirmed the district court’s decision. This case arises from allegations that certain officers of Level 3 Communications, Inc. engaged in securities fraud. The lead plaintiff filed a class action complaint on behalf of all purchasers or acquirers of Level 3 securities between October 17, 2006, and October 23, 2007. Plaintiff alleges that Defendants made false or misleading statements of material fact to the market during the class period regarding Level 3’s progress in integrating several entities it had acquired.

Under Section 10(b) of the Securities Exchange Act of 1934, it is unlawful to “use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” Additionally, 17 C.F.R. § 240.10b-5 prohibits “mak[ing] any untrue statement of a material fact.” On appeal, Plaintiff “argues that the district court should be reversed because the amended complaint adequately pleaded false statements of material fact made by [D]efendants, as well as facts sufficient to raise a strong inference of scienter. Although [the Court agreed] with [P]laintiff that at least a few of the complaint’s 237 paragraphs include materially false statements, [it affirmed] the district court’s dismissal of the complaint based on [the] conclusion that it fails adequately to plead scienter.”

According to the Court, “[t]he importance of integration to Level 3 and its investors does not mean that everything [D]efendants said on the topic was material. Many of the statements in [P]laintiff’s complaint are, as a matter of law, nothing more than puffery. . . . [B]road claims by [D]efendants regarding integration efforts and the customer experience overall are likewise non-actionable.” However, “on occasion [D]efendants’ comments regarding Level 3’s integration progress did cross the line from corporate optimism and puffery to objectively verifiable matters of fact” that could be actionable. Three of the statements were found to be false or misleading when made. However, “it is not enough for [P]laintiff to point out misleading statements of material fact. Under the heightened pleading standards of the PSLRA, [P]laintiff must state with particularity facts ‘giving rise to a strong inference’ that the [D]efendants acted with scienter, which we define as ‘a mental state embracing intent to deceive, manipulate, or defraud, or recklessness.’” The Court concluded that no cogent inference of scienter could be drawn from the complaint.

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Colorado Supreme Court: Predominance of Individual Issues Precluded Class Certification

November 2, 2011 by Leave a Comment

The Colorado Supreme Court issued its opinion in State Farm Mut. Ins. Co. v. Reyher on October 31, 2011.

Class Actions—Class Certification—Burden of Proof—Colorado Automobile Accident Reparations Act.

Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court affirmed the trial court’s decision to deny class certification, thereby reversing the court of appeals’ judgment. The Court concluded that the trial court rigorously analyzed plaintiffs’ class-wide theories of liability, as well as the evidence offered by defendant to refute those theories in determining that the predominance of individual issues precluded class certification.

Summary and full case available here.

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Colorado Supreme Court: Defendant May Introduce Individual Evidence to Rebut Class-Wide Inference of Fraudulent Concealment

November 2, 2011 by Leave a Comment

The Colorado Supreme Court issued its opinion in BP America Production Co. v. Patterson on October 31, 2011.

Class Actions—Burden of Proof—Circumstantial Evidence—Inference or Presumption—Fraudulent Concealment.

Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court affirmed the trial court’s decision to grant class certification. The Court held that the ignorance and reliance elements of fraudulent concealment may be inferred from circumstantial evidence, enabling plaintiffs to establish a theory of fraudulent concealment on a class-wide basis with evidence common to the class. The Court also held that a defendant may introduce individual evidence to rebut such a class-wide inference. The Court concluded that the trial court rigorously analyzed all the evidence presented in support of and in opposition to class certification, as required by Jackson.

Summary and full case available here.

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Colorado Supreme Court: Causation and Injury Elements of Consumer Protect Act Claims May Be Inferred from Circumstantial Evidence Common to the Class

November 2, 2011 by Leave a Comment

The Colorado Supreme Court issued its opinion in Garcia v. Medved Chevrolet, Inc. on October 31, 2011.

Class Actions—Burden of Proof—Circumstantial Evidence—Inference or Presumption—Colorado Consumer Protection Act.

Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court concluded that the trial court failed to rigorously analyze the evidence in deciding to grant class certification. The Court therefore affirmed the court of appeals’ decision remanding the case to the trial court to conduct such an analysis.

Consistent with its opinion in BP America Production Co. v. Patterson, 185 P. 3d 811 (Colo. 2008),the Court held that the causation and injury elements of plaintiffs’ Consumer Protection Act claims may be inferred from circumstantial evidence common to the class. The Court further held that defendant has the opportunity to rebut such class-wide inferences with individual evidence. The Court concluded that, in its analysis, the trial court neglected to consider the evidence offered by defendant to refute plaintiffs’ class-wide theories of liability.

Summary and full case available here.

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Colorado Supreme Court: Trial Court Must Rigorously Analyze the Evidence when Deciding to Certify a Class; Declined to Adopt Specific Burden of Proof

November 2, 2011 by Leave a Comment

The Colorado Supreme Court issued its opinion in Jackson v. Unocal Corp. on October 31, 2011.

Civil Procedure—Class Actions—Burden of Proof—Expert Disputes.

In the lead case in a series of four class action cases, the Supreme Court addressed the standards a trial court must apply when deciding whether to certify a class pursuant to C.R.C.P. 23. The Court declined to adopt a specific burden of proof and therefore reversed the court of appeals’ decision holding that a trial court must apply a preponderance of the evidence standard to C.R.C.P. 23’s class certification requirements. Instead, the Court held that a trial court must rigorously analyze the evidence presented and determine to its satisfaction that each C.R.C.P. 23 requirement is met.

The Court also considered whether a trial court may resolve factual or legal disputes relevant to class certification where those disputes independently overlap with the merits. The Court held that a trial court may consider factual or legal disputes to the extent necessary to satisfy itself that the requirements of C.R.C.P. 23 have been met, but may not resolve factual or legal disputes to screen out or prejudge the merits of the case. The Court extended this holding to expert disputes, such that a trial court may consider expert disputes in determining whether class certification is appropriate, but need not determine which expert will prevail at trial or whether an expert’s testimony ultimately will be admissible at trial.

Summary and full case available here.

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Tenth Circuit: Stipulation of Dismissal Was a Self-Executing Dismissal and Required No Further Motion

November 1, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in De Leon v. Marcos on Thursday, October 27, 2011.

The Tenth Circuit vacated the district court’s judgment. Petitioner appeals from the district court’s entry of judgment in favor of Respondent. The district court granted Respondent’s motion to dismiss on the merits after the parties had already executed a settlement agreement and filed a stipulation of dismissal. However, the Tenth Circuit found two ambiguities that were raised by the stipulation of dismissal. “First, it invokes Rule 41(a)(2), but that rule contemplates a motion to dismiss filed by the plaintiff in situations other than those set out in Rule 41(a)(1), not a jointly signed stipulation. . . . [T]he procedural posture of the case was such that the parties could have invoked the exception to Rule 41(a)(2), i.e., Rule 41(a)(1), and the stipulation was not styled as plaintiff’s motion. The second ambiguity is that the stipulation provides a space for the district judge’s signature but does not expressly ask the district court to approve the dismissal; in other words, it is not a motion to dismiss as contemplated by Rule 41(a)(2).”

Despite these ambiguities, “it appears that neither of them affected the district court’s interpretation of the stipulation. Instead, the court read the stipulation as conditioned on the filing of a motion to dismiss and assumed that the parties had rescinded the Agreement.” However, the stipulation itself was the “motion” referred to in the stipulation. Therefore, the district court’s conclusion that a separate motion was required was incorrect and there was no reason to conclude that the Agreement had been rescinded. The Court found that the stipulation of dismissal was a self-executing dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii) and vacated the district court’s judgment.

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Legal Trends and Best Practices in Class Arbitration, Continued

October 7, 2011 by Leave a Comment

This article summarizes the U.S. Supreme Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. and AT&T Mobility LLC v. Concepción, as well as related earlier decisions. The discussion focuses on the effect of those decisions on arbitration jurisprudence. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 47) and will publish in two CBA-CLE Legal Connection blog posts. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Editor’s Note: This segment of the article highlights the AT&T Mobility LLC v. Concepción decision. The authors of this article, Dirk W. de Roos and Russell O. Stewart, along with Jay S. Horowitz, presented a CLE program on this subject and addressed the case as one of the most immediate attacks on class action litigation as it now exists. Are class action lawsuits obsolete? This seminar analyzed the decision and what may be its historic (and potentially almost inconceivable) impact on class action litigation. The program is available as a CLE homestudy in two formats: video on-demand and mp3 download.

By Dirk W. de Roos, Russell O. Stewart

In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the U.S. Supreme Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement is silent about the parties’ intent to allow for class arbitration. In the later case of AT&T Mobility LLC v. Concepción, the Court held that the FAA preempted California law mandating class actions as a viable arbitration remedy. This article discusses both opinions and their impact on arbitration in the United States.

The AT&T Mobility v. Concepción Opinion

On April 27, 2011, the U.S. Supreme Court, in a case closely followed by class action attorneys, held that the FAA preempts California’s Discover Bank rule, which had held that consumer collective arbitration waivers were unconscionable and unenforceable. Justice Scalia, writing for a majority in AT&T Mobility v. Concepción,55 explained that the California rule mandating the availability of class-wide arbitrations interfered with the FAA’s fundamental purpose of ensuring the enforcement of agreements to arbitrate in an efficient, streamlined procedure. AT&T Mobility fills in the blanks left by Stolt-Nielson and clarifies the Court’s views on class actions and arbitration.

The Discover Bank Rule

Discover Bank v. Superior Court56 involved a consumer arbitration agreement that contained an express waiver of any right to maintain a class action. The California Supreme Court ruled that such a waiver was unconscionable in California if it was used in a consumer context and if the disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small amounts of money.57

The Concepción Facts

Vincent and Liza Concepción signed a contract with AT&T for several cellular telephones. The contract required arbitration of any disputes. The sales agreement further required that claims be brought only in each party’s individual capacity, and not as plaintiffs or class members of any purported class or representative proceeding. In addition, the contract provided that “the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.”58

Balancing the waiver of class-action rights, the AT&T contract contains terms that are unusually favorable to consumers. For example, if there were an arbitration: (1) AT&T was required to pay all costs for non-frivolous claims; (2) the arbitration must take place in the county where the Concepcións were billed; (3) either party could elect to proceed in small claims court; (4) the Concepcións could choose whether the proceedings would be in person, by telephone, or by submittal; (5) AT&T was precluded from ever seeking attorney fees; and (6) if the Concepcións recovered more than AT&T’s last written settlement offer, AT&T was obligated to pay a $7,500 minimum recovery fee and twice the amount of the Concepcións’ attorney fees.

The Ninth Circuit’s View

A dispute arose when the Concepcións were billed $30.22 in sales tax for their “free” telephones. The Concepcións filed a putative class action complaint in the U.S. District Court in Los Angeles, alleging that AT&T had engaged in false advertising by charging sales tax on phones it advertised as free.

AT&T filed a motion in district court to compel arbitration under the FAA. The district court described the contract favorably, observing that the $7,500 minimum recovery fee was a substantial inducement to arbitrate, and finding that consumers who were members of a class “would likely be worse off” if they pursued their claims through class arbitration instead of individually. Nevertheless, the district court concluded that the arbitration agreement was unconscionable under California law because AT&T had “not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions.”59

The Ninth Circuit affirmed, agreeing that the attempted waiver of class action rights was unconscionable.60 In addition, the Ninth Circuit reasoned that the Discover Bank rule merely “placed arbitration agreements with class action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.”61 Because § 2 of the FAA permits arbitration provisions to be declared unenforceable on “such grounds as exist in law or equity for the revocation of any contact,” the Ninth Circuit concluded that California law did not disfavor arbitrations and was not preempted by the FAA.

The Supreme Court’s Reversal

Justice Scalia, writing for five Justices, reversed the Ninth Circuit and held that notwithstanding California law, as a matter of federal law, class action waivers in arbitration clauses are not unconscionable. The Court first recalled that the FAA was adopted by Congress in response to widespread judicial hostility to the arbitration process. The FAA provides in relevant part that state laws disfavoring or refusing to enforce arbitration provisions are preempted. It states:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.62

Under this section, arbitration provisions and agreements must be placed on equal footing with other contracts, and enforced according to their terms. Furthermore, the final phrase of the section permits agreements to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an arbitration agreement is at issue.

The Court noted that the California Supreme Court in Discover Bank held that agreements were unconscionable and unenforceable if: (1) the waiver is found in a consumer contract of adhesion; (2) the setting is likely one of a small amount of damages; and (3) there is an allegation that the party with superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small amounts of money. The Court observed that California courts had frequently applied the Discover Bank rule to find class action waiver provisions unconscionable, and that California judges were more likely to hold unconscionable contracts to arbitrate when compared to other contracts.

The Court began its analysis with the observation that the preemption inquiry becomes complex when a doctrine of general applicability, such as unconscionability, “is alleged to have been applied in a fashion that disfavors arbitration.” As examples, Justice Scalia suggested that states might attempt to prohibit all agreements that fail to provide for judicially monitored discovery. Although such a rule would be generally applicable, it would in practice disfavor arbitration. Other examples might be a state law that declares unconscionable any agreements that fail to follow the Federal Rules of Evidence, or a state law that disallows any agreement that does not permit an ultimate disposition by a jury. These examples have historical analogies in judicial treatment of arbitration before the FAA was enacted in 1925.

Justice Scalia concluded that the overarching purpose of the FAA is to ensure the enforcement of arbitration provisions according to their terms so as to facilitate streamlined dispute resolution proceedings. That being so, the Discover Bank rule requiring the availability of class-wide arbitration interferes with the fundamental attributes of arbitration and thus created a scheme inconsistent with the FAA.

The Court held that the Discover Bank rule violates § 2 of the FAA by imposing an arbitration condition to which both parties had not agreed. The California court’s attempt to limit the rule to contracts of adhesion is essentially meaningless, because “the time in which consumer contracts [are] anything other than adhesion [is] long past.”63 Moreover, the purported limitation that the damage be “small” is “toothless and malleable,” and the requirement of an alleged “scheme to cheat” has no limiting effect. The Court concluded that, faced with inevitable class arbitration, companies would have less incentive to continue to resolve potentially duplicative claims on an individual basis.

The Court found additional support for its holding in Stolt-Nielsen.64 As detailed above, in Stolt-Nielsen, the Court held that an arbitration panel exceeded its power under § 10 of the FAA by imposing class procedures based on policy judgment rather than the arbitration agreement itself or some background principle of contract law. The agreement at issue there could not be interpreted to allow such changes because the “changes brought about by the shift from bilateral arbitration to class-action arbitration are fundamental.”65 Class actions involve absent parties and require different procedures, which makes confidentiality more difficult. Class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, thus is inconsistent with and stands as an obstacle to accomplishment of the purposes of Congress enacting in the FAA.

The Court noted that the switch from bilateral to class arbitration sacrifices one advantage of arbitration—its informality. Indeed, any class action will require procedural formality to satisfy concerns of due process noted in Phillips Petroleum v. Shutts.66 Among other things, the class representative must adequately represent absent class members, and absent members must be afforded notice and an opportunity to opt out of the class. Class action arbitrations also greatly increase the risks to defendants, and the lack of review of arbitration awards makes it likely that errors will go uncorrected. Arbitration is poorly suited to the higher stakes of class litigation, and parties may not contractually expand the scope of judicial review. The majority concluded:

[W]e find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to allow states to force such a decision.67

The Concepción decision concludes by noting that with the favorable dispute resolution procedures in AT&T’s contract, the Concepcións’ individual claim was likely to be resolved, and the Concepcións would be better off pursing their individual arbitration claims instead of participating in a class action.

Conclusion

Concepción makes clear that class action waivers in arbitration clauses are not unconscionable and should be enforced in all fifty states. Concepción is a pro-arbitration decision, and is likely to result in more arbitrations of consumer contracts and greater use of class action waivers such as those used by AT&T. Absent some legislative changes to the FAA’s breadth of preemption, Concepción also may substantially curtail class actions in contractual disputes.

Notes

55. Concepción, supra note 2.

56. Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005).

57. Id. at 162.

58. Concepción, supra note 2 at 2 n.2.

59. Laster v. T-Mobile, USA, Inc., 2008 WL 5216255 (S.D.Cal., Aug. 11, 2008).

60. Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. 2009).

61. Id. at 857.

62. 9 U.S.C. § 2.

63. Concepción, supra note 2 at 12.

64. Stolt-Nielsen, supra note 1.

65. Concepción, supra note 2 at 13.

66. Phillips Petroleum v. Shutts, 472 U.S. 797, 811-12 (1985).

67. Concepción, supra note 2 at 16-17.

Dirk W. de Roos is a partner with Faegre & Benson LLP in Denver. He focuses his practice on business litigation and insurance law—dderoos@faegre.com. Russell O. Stewart is a partner with Faegre & Benson LLP in Denver. He focuses his practice on litigation—rstewart@faegre.com.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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Legal Trends and Best Practices in Class Arbitration

October 4, 2011 by Leave a Comment

This article summarizes the U.S. Supreme Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. and AT&T Mobility LLC v. Concepción, as well as related earlier decisions. The discussion focuses on the effect of those decisions on arbitration jurisprudence. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 47) and will publish in two CBA-CLE Legal Connection blog posts. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Editor’s Note: This segment of the article highlights the Stolt-Nielsen decision. Dirk W. de Roos, co-author of this article, presented a CLE program on this subject and addressed issues arising out of class action arbitrations and the enforceability of contractual “class action arbitration” waivers. The presentation discussed the fundamentals of class action waivers, judicial enforcement, the status of case law and Colorado law on the issue, and the future of class arbitrations. The program is available as a homestudy in two formats: video on-demand and mp3 download.

By Dirk W. de Roos, Russell O. Stewart

In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,1 the U.S. Supreme Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement is silent about the parties’ intent to allow for class arbitration. In the later case of AT&T Mobility LLC v. Concepción,2 the Court held that the FAA preempted California law mandating class actions as a viable arbitration remedy. This article discusses both opinions and their impact on arbitration in the United States.

Stolt-Nielsen—Facts and Background

Respondent AnimalFeeds International Corp. (AnimalFeeds) supplied ingredients to animal-feed production businesses worldwide.3 AnimalFeeds shipped its ingredients in petitioners’ seagoing vessels.4 The parties conducted business using a standardized contract known as a “charter party,” which governs trade needs between parties in the shipping industry.5 The charter party included an arbitration provision requiring any disputes to be settled in New York using the rules of the FAA.6 Under the agreement, the parties could appeal an arbitrator’s decision in federal court.7

In 2003, an investigation by the U.S. Department of Justice revealed that the petitioners were engaging in a price-fixing conspiracy.8 AnimalFeeds brought suit, alleging antitrust claims against petitioners in the Eastern District of Pennsylvania.9 Other charterers also brought suit and the Judicial Panel on Multidistrict Litigation consolidated the pending actions in the District of Connecticut. The parties then determined that they were obligated to arbitrate the dispute.

In 2005, AnimalFeeds brought arbitration in New York City and sought to represent a class of charterers affected by the price-fixing conspiracy. The parties agreed that a panel of arbitrators would decide whether the charter party allowed class arbitration. The parties also agreed that the charter party remained silent as to the parties’ intent to allow class arbitration. The arbitration panel determined that the agreement allowed for class arbitration, despite its silence on the issue, because no evidence showed intent to preclude class arbitration.

The arbitrators then stayed the arbitration proceeding to allow for judicial review of the decision. The U.S. District Court for the Southern District of New York vacated the decision. The court of appeals reversed the lower court, finding no custom or usage against class arbitration in maritime law.10 The U.S. Supreme Court found in favor of petitioners, vacated the panel’s decision, and remanded the case.11

Legal Conclusions of the Supreme Court in Stolt-Nielsen

The U.S. Supreme Court concluded that the arbitration panel exceeded its authority and that parties must consent to matters of arbitration. These conclusions are discussed below.

The Arbitration Panel Exceeded Its Authority

For a court to vacate an arbitration decision, a standard higher than a mere showing of serious error must be met.12 An arbitrator’s decision may be unenforceable only when he or she “strays from interpretation and application of the agreement,” effectively creating his or her own version of justice.13 A court may vacate the arbitrator’s decision under § 10(a)(4) of the FAA, which limits the arbitrator’s role to interpreting or enforcing a contract, rather than making public policy.14

The arbitration panel based its decision on the fact that the arbitration agreement remained silent and that, as a matter of public policy, an agreement should be construed to permit class arbitration.15 However, the Court noted that the panel failed to look to the FAA, maritime law, or New York law to determine what rule governs when a contract remains silent.16 Rather, the panel analyzed Green Tree Financial Corp. v. Bazzle, a case where the U.S. Supreme Court held that arbitrators must decide when a contract remains silent with regard to class arbitration.17 The panel then relied on cases interpreting Bazzle that broadly construed silent arbitration clauses to allow for class arbitration.

The Court in Stolt-Nielsen found that the panel acted as a common law court, developing what it believed to be the best rule, rather than identifying the intent of the parties and applying the governing rule of law from a relevant jurisdiction.18 Finding that the panel had exceeded its powers under § 10(b) of the FAA, the Court decided the question of class arbitration instead.19

Bazzle Does Not Determine Whether Class Arbitration is Permitted

Bazzle concerned a dispute between a commercial lender and its customers over contracts with arbitration clauses that did not expressly mention class arbitration. In a plurality decision, the U.S. Supreme Court held that an arbitrator, rather than a court, has the power to determine the arbitration issue when a contract remains silent with regard to class arbitration.

The parties in Stolt-Nielsen misconstrued Bazzle by interpreting it as allowing an arbitrator to determine whether a contract permitted class arbitration.20 Instead, the decision held only that an arbitrator may decide if a contract remains silent regarding class arbitration.21 The Court noted that Bazzle did not clarify the first issue, because only a plurality decided that an arbitrator should determine when a contract allows for class arbitration.22 The Court declined to decide the question in Stolt-Nielsen.23 The Court also clarified that Bazzle did not establish a standard for determining whether an arbitration agreement allows for class arbitration.24

Parties Must Consent to Matters of Arbitration

The FAA requires that parties consent to all provisions of an arbitration agreement.25 Section 4 of the FAA allows a party to “petition a United States district court for an order directing that ‘arbitration proceed in the manner provided for in such agreement.’”26 Therefore, the FAA guarantees that arbitration agreements between private parties are implemented under the terms on which the parties intended to agree.27

The Court concluded that parties cannot consent to a contractual agreement without the intent to do so; because both parties concur that the agreement remained silent, the parties did not consent to class arbitration.28 Although an implicit agreement to class arbitration may exist in other cases, the parties here agreed that the contract remained silent.29

According to the Court, class arbitration is significantly different from bilateral arbitration.30 Rather than resolving a dispute between two parties, class arbitration has the potential to include thousands of parties. The presumption of privacy disappears, and the arbitration panel’s award binds present and absent parties.31 In light of the stark differences between class and bilateral arbitration, the Court held that consent to class arbitration is necessary, and the agreement’s silence on the matter could not be construed as consent.32

Judicial Reaction to Stolt-Nielsen

Stolt-Nielsen has influenced multiple cases since it was decided; however, no court has yet analyzed its precedential value. In May 2010, the Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant.33 The Second Circuit had held that an arbitration agreement was unenforceable on public policy grounds because it waived class arbitration.34 The Supreme Court remanded the case, directing the Second Circuit to reconsider its decision in light of Stolt-Nielsen.35

In McArdle v. AT&T Mobility LLC, the Northern District of California found Stolt-Nielsen to be a narrow decision. The court held that the FAA does not preempt the California state law that makes arbitration agreements that waive class arbitration unenforceable.36 One court recently observed that Stolt-Nielsen fails to clarify many outstanding questions regarding arbitration, such as which standard to apply when vacating an arbitrator’s award.37

Stolt-Nielsen’s Impact on Arbitration Law

Legal scholars have noted the impact of Stolt-Nielsen on arbitration law. First, the decision raised the question of whether the FAA preempts state laws addressing class arbitration and unconscionability. Many state and federal courts have held class action waivers in arbitration agreements unenforceable as against public policy.38 Many state courts have found barring class arbitration unconscionable because in many circumstances, the parties entering into an agreement hold unequal bargaining power.39 Because the damages for most parties would be small, little incentive exists for an aggrieved party to pursue his or her rights if an agreement bars class arbitration.40

The Court in Stolt-Nielsen did not address whether the FAA preempts state courts from allowing class arbitration under state law, even when an agreement is silent.41 However, as discussed below, the Supreme Court recently decided AT&T v. Concepción, concluding that the FAA preempts states from conditioning the validity of arbitration provisions on the inclusion of specific procedures, including class arbitration.

The Stolt-Nielsen decision implies that the U.S. Supreme Court may prevent the arbitration of public policy issues. The Court noted that an arbitrator must interpret a contract using law from applicable jurisdictions, not create public policy.42 That said, questions of public policy present themselves in commercial arbitration settings when parties argue that the enforceability of a contract is based on public policy.43 By defining the arbitrator’s role as solely applying contract terms, but not analyzing public policy, the Court may have undermined an arbitrator’s power to arbitrate claims and defenses based on public policy grounds.44

The decision may limit the frequency of class arbitration. The Court interpreted the FAA restrictively, limiting arbitration to the explicit scope of the parties’ agreement.45 Previously, many lower courts interpreted the FAA broadly to permit class arbitration, even when an agreement did not specify parties’ intent.46 The Court has made it more difficult for parties to demonstrate intent under the FAA absent an express provision.47 Interpreting the FAA restrictively, the Court narrowed circumstances in which parties may be allowed to use class arbitration.48

Finally, the Court’s application of § 10(b)(4) of the FAA may lead to an increased use of the provision. In vacating the arbitrators’ decision, the Court used the “exceeding powers” standard of § 10(b)(4), rather than the “manifest disregard” standard often used by lower courts.49 Confusion about the manifest disregard standard has existed for some time, but the Court did not address the issue.50 Therefore, other courts likely will follow suit in using the alternative standard of review from § 10(b)(4) to determine when to vacate an award.51

Other Changes in the Arbitration Setting

In June 2010, the U.S. Supreme Court decided Rent-A-Center, West, Inc. v. Jackson,52 where it determined the arbitrability of arbitration clauses in contracts. The Court held that under the FAA, an arbitrator must determine an agreement’s enforceability if an arbitration agreement includes a clause delegating authority to the arbitrator to determine whether the agreement is fair.53 However, a district court may consider challenges to the enforceability of the individual delegating clause.54

Notes

1. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758, 1776 (2010).

2. AT&T Mobility LLC v. Concepción, __ S.Ct. __ 2011 WL 1561956 (April 27, 2011) (slip op.).

3. Stolt-Nielsen, supra note 1 at 1764.

4. Id.

5. Id. at 1764-65, n.1.

6. Id. at 1765.

7. Id.

8. Id.

9. Id.

10. Id. at 1766.

11. Id. at 1777.

12. See id. at 1767, citing E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57 (2000).

13. Id., quoting Major League Baseball Players Assn. v. Garvey, 532 U.S. 504 (2001) (per curiam).

14. Id.

15. Id.

16. Id.

17. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).

18. Stolt-Nielsen, supra note 1 at 1769-70.

19. Id. at 1770.

20. Id. at 1772.

21. Id.

22. Id.

23. Id.

24. Id.

25. Id. at 1773.

26. Id., quoting 9 U.S.C. § 4.

27. Id.

28. Id. at 1775.

29. Id.

30. Id. at 1776.

31. Id.

32. Id.

33. Am. Express Co. v. Italian Colors Restaurant, 130 S.Ct. 2401, 2401 (2010).

34. In re Am. Express Merchants’ Litigation, 554 F.3d 300 (2d Cir. 2009).

35. Am. Express, supra note 33 at 2401.

36. McArdle v. AT&T Mobility LLC, No. C 09-1117 CW, 2010 WL 1875812 at *1-2 (N.D.Cal., May 10, 2010).

37. See, e.g., Republic of Argentina v. BG Group PLC, No. 08-485 (RBW), 2010 WL 2264957 at *3 n.7 (D.D.C., June 7, 2010) (noting that the court declined to determine whether an award could be vacated due to “manifest disregard of the law” by an arbitrator).

38. Loree, “Stolt-Nielsen Delivers A New FAA Rule—And Then Federalizes the Law of Contracts,” 28 Alts. to High Cost Litig. 121 (2010).

39. See, e.g., Gentry v. Superior Court, 165 P.3d 556 (Cal. 2007) (holding arbitration clauses that preclude class certification unenforceable).

40. Wolson, “The Law of Unintended Consequences: Did the Stolt-Nielsen Decision Inadvertently Invalidate Millions of Arbitration Provisions?” 241 Legal Intelligencer (2010).

41. See Haines, “Arbitration Ruling Handed Down from the U.S. Supreme Court and California Law,” California Employee Advocate (May 17, 2010), available at www.californiaemployeeadvocate.com/tags/stolt
nielsen-v-animal-feeds-in.

42. Stolt-Nielsen, supra note 1 at 1767-70.

43. Loree, supra note 38.

44. See id.

45. See Stolt-Nielsen, supra note 1 at 1767-70.

46. See id. at 1769 (discussing a consensus among courts that class arbitration is beneficial).

47. See id.

48. See Doyle and Ruben, “Stolt-Nielsen S.A. et al. v. AnimalFeeds International Corp.,” ABA Section of Lab. & Emp. Law (2010), available at www.abanet.org/labor/lel-hottopics/10/stolt-nielsen.html.

49. See Stolt-Nielsen, supra note 1 at 1768-69.

50. See id. at 1768 n.3.

51. See Loree, supra note 38.

52. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. __ (2010).

53. Id.

54. Id.

Dirk W. de Roos is a partner with Faegre & Benson LLP in Denver. He focuses his practice on business litigation and insurance law—dderoos@faegre.com. Russell O. Stewart is a partner with Faegre & Benson LLP in Denver. He focuses his practice on litigation—rstewart@faegre.com.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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