I recently posted the results of the Supreme Court opinion in AT&T v. Concepcion – the invalidation of a state law that rendered unenforceable the waiver of class action suits in arbitration.  However, upon closer review of the opinion, the method utilized by the Supreme Court majority of five Republican nominated Justices is very troubling.  Professing to simply follow the “text” of the Federal Arbitration Act (“FAA”), the opinion of the court written by Justice Scalia in effect took a black magic marker and crossed out the words of the text they didn’t like.  Without those words in the statute, the result would indeed be true to the text.  But just as aptly as the boy in the Hans Christian Andersen fable cried, “the Emperor has no clothes,” ignoring the words of a statute is not a textual approach. Read more…

On April 27, 2011, the U.S. Supreme Court issued its much-anticipated decision in AT&T Mobility LLC v. Concepcion, 563 U.S. __ (2011), in which the Court held that § 2 of the Federal Arbitration Act (“FAA”) preempts a certain California judicial rule (the so-called Discover Bank rule) relating to collective-action waivers in arbitration agreements.  Justice Scalia authored the 5-4 majority opinion, and – not surprisingly – was joined by Justices Kennedy, Thomas, Alito, and Chief Justice Roberts.   Although AT&T Mobility in some ways is a victory for big business and a potential setback for consumers, the decision is by no means the death knell for consumer class actions.  Nor does the decision signify the end to consumer challenges to pre-dispute arbitration provisions, including on the grounds of unconscionability. Read more…