Class action news has slowed a bit over the Summer months, at least compared to the non-stop action we witnessed this Spring. But one area that has seen continued development in the past few months has been the area of class arbitration waivers, where several lower court decisions have been issued in the wake of AT&T Mobility LLC v. Concepcion. A view of the decisions shows that class actions are far from dead, despite the dire predictions of many experts following the decision. As my partner, John Lewis, noted in a recent interview with the AmLaw Daily, “While many people thought Concepcion was the end of the line, now we’re seeing the reaction to Conception with district courts distinguishing it on various grounds.” Here is a quick summary of several key decisions that have interpreted or applied Concepcion:
Chen-Oster v. Goldman Sachs, Inc. (link courtesy of Justia.com) – U.S. District Court for the Southern District of New York – July 7, 2011 – applying the federal common law of arbitrability in rejecting the argument that Concepcion required enforcement of class arbitration waiver in a gender discrimination pattern and practice case, holding that enforcement of the arbitration clause at issue would interfere with the enforcement of a federal substantive right.
Brown v. Ralphs Grocery Company (link courtesy of Impact Litigation Journal, which also has a summary of the decision here) – California Court of Appeal – July 12, 2011 – holding that representative actions for state labor code violations under California’s Private Attorney General Act (PAGA) were not preempted by the FAA because Concepcion did not address preemption in cases involving PAGA’s statutory procedure and because the procedure did not involve many of the attributes of class action procedure that the Supreme Court had held were inconsistent with the purposes of arbitration.
Kanbar v. O’Melveny & Myers (link also courtesy of the AmLaw Daily) – U.S. District Court for the Northern District of California – July 21, 2011 – holding in an employment discrimination case that notwithstanding Concepcion, an arbitration provision was unconscionable under California state law and that state law was not preempted under the FAA, but nonetheless compelling arbitration on the grounds that the plaintiff had waived her right to object to enforceability of the arbitration clause.
Cruz v. Cingular Wireless LLC – Eleventh Circuit Court of Appeals – August 11, 2011 – holding that Concepcion compelled the conclusion that arbitration clause was enforceable in a case involving the same exact arbitration clause that was at issue in Concepcion (the clause in AT&T’s mobile phone contract).