Thanks to New York attorney William R. Weinstein for tipping me off to another hot-off-the-presses decision addressing class arbitration waivers following AT&T Mobility v. Concepcion. In an order entered September 1, 2011 in the MDL case In re Checking Account Overdraft Litigation, Judge James Lawrence King of the U.S. District Court for the Southern District of Florida had this to say about the parties’ competing interpretations of Concepcion:
The Parties now before the Court have each argued for an extreme interpretation of Concepcion. Plaintiffs ask the Court to find that Concepcion has changed nothing, and that the class action waivers in the arbitration agreements may still be the basis for finding them unconscionable. Defendants, on the other hand, argue that Concepcion has changed everything, and that unconscionability is no longer a defense to the enforceability of an arbitration agreement. In a sense, both views are correct. Concepcion has changed everything, in that class action waivers have historically been a major factor in the unconscionability analysis under state law, and now, they can no longer be considered. And yet, Concepcion has changed nothing in that a thorough, case-by-case analysis of the applicable state law doctrine of unconscionability, applied to the specific terms of an arbitration agreement, is still required. In sum, Concepcion has not relieved courts from their obligation to scrutinize arbitration agreements for enforceability on a case-by-case basis where one party resists arbitration; rather, Concepcion provides guidance as to what courts may consider when fulfilling that obligation. Accordingly, the Court reviews each of the five Agreements at issue in turn. . . .
