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.
Second, the fact that future legislative or executive action or lower court judicial gloss may water down or limit Concepcion‘s ultimate impact should not keep companies from taking advantage of what is now, at minimum, an enhanced tool for protection against the significant cost of defending against class action litigation. In the short term, any in-house or outside counsel charged with advising corporate clients should be considering ways to incorporate class arbitration waivers or similar provisions into the client’s form contracts and terms of use. While it may not be failsafe protection from class actions, a well-drafted, reasonably limited class arbitration waiver, has an exponentially greater chance of being enforced than it did before the Concepcion decision was announced.
ClassActionBlawg.com 
I’m amused. As I said to defense counsel at a large multi-national firm, I guessed that midway through the second glass of champagne, the defense bar realized it had a real problem. He is apparently looking for a new job or to transition into other areas of practice.
Your one concrete example–retail sales–is, as you know, a less viable class because of problems of ascertainment, notice, locating the class, providing notice and obtaining and distributing relief. And not all retail sales cases survive. You likely recall the Gateway case some years ago with the forced mandatory arbitration clause in the paperwork in the box that was deemed accepted upon registration?
I love the concerted talking points in the defense bar that these cases are not done. Those of us who represent consumers know better.
We also know the torrent about to be unleashed when consumers can no longer take concerted action to stop nickel and diming on high-volume, small amount claims. AT&T, Comcast, banks, utilities, credit card companies are fixing to celebrate the opening of the all-you-can-eat trough of greed.
The argument that Congressional or Executive action *might* change things proves too much. Absent such action, consumer class cases are pretty much done. The argument also illustrates the crass overreaching in SCOTUS’ opinion, with views on federalism and statutory construction that are as breathtaking as the Citizens United case.
This is really not a problem for me because I handle a wide range of consumer and plaintiff problems. But my colleagues in high-priced defense firms who defend consumer class actions for a living are likely to have problems.
So no, if I were a high end defense attorney, I wouldn’t take much comfort in Forbes view or the talking points. It’s going to get bleak out there.
Lest you doubt my dire predictions, let’s set a wager for 12 months from the decision on how many consumer class actions have been filed, how many layoffs in the defense industry, or some other agreed-upon metric that we can revisit next year.
It has been almost a year. Could someone tell me, in their opinion, what effect Concepcion has had on consumer class actions over the last 11 months?
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