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Posts Tagged ‘arbitration clause’

I’m a few weeks behind in reporting this, but I still thought it was worth noting that the Florida Supreme Court held oral argument last month in a case that could test the the reach of the U.S. Supreme Court’s 2011 decision on class arbitration waivers in AT&T Mobility v. Concepcion.  In McKenzie Check Advance of Florida LLC v. Wendy Betts, SC11-514, the plaintiff relied on factual evidence in an attempt to prove that the lack of a class action device has made it impossible for her to obtain legal representation to pursue her claims in arbitration.  The case thus potentially raises the question of whether a case-specific finding of unconscionablility, as opposed to a statewide policy invalidating class arbitration waivers more generally, is permissible despite the Court’s holding in Concepcion (I say potentially because it appears that there are factual questions about whether the evidence really supports the proposition that there would be no lawyer willing to take the plaintiff’s case in an individual arbitration).  Recall that the arbitration provision at issue in Concepcion contained several consumer-friendly features, which could have supported the conclusion that it did not actually deprive a consumer of any opportunity to vindicate his or her rights, although Justice Scalia’s majority opinion did not turn on the existence of these features.

This AP article by Bill Kaczor has a good summary of the arguments on both sides and some of the key questions posed during oral argument.  A link to the video feed of the oral argument can be found here (although the server was not responding when I tried to play it).

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Two op-eds published today highlight the philosophical debate over the impact of the Supreme Court’s recent decision in AT&T Mobility v. Concepcion.

The first, published by the New York Times, argues that the decision is a “devastating blow to consumer rights” because it makes it practically impossible for many consumers to seek vindication of their rights in any forum.

In response, Forbes contributor Daniel Fischer argues that Concepcion’s limitation on consumer class actions does not really harm consumers because consumer class actions really only benefit lawyers.  As a prime example, he points to the controversial proposed settlement in a class action involving DirectBuy to which 36 attorneys general and a consumer rights organization have objected.

I would recommend reading both articles for anyone interested in the possible social and legal implications of the Court’s recent decision.

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