Will the Supreme Court’s Decision in AT & T Mobility v. Concepcion Bring an End to Class Action Lawsuits Against Large Corporations?

Submitted by Elaine Magliaro, Guest Blogger

Last Wednesday, the Supreme Court handed down its ruling in the case of AT & T Mobility v. Concepcion.  The justices split along ideological lines once again. The 5 to 4 decision came down on the side of corporations—and most likely eliminated the right of citizens to band together to bring class action lawsuits against large corporations.

The Concepcion case involved cellphones and a common type of contract that requires customers to press their claims through arbitration instead of through lawsuits. As reported by Robert Barnes in The Washington Post, these types of contracts “which mandate individual rather than group claims, are becoming standard for companies offering loans, cable service, credit cards and even employment.”

In a November 2010 Mother Jones article titled Consumer Protection’s Citizens United, Stephanie Mencimer wrote: “AT&T v. Concepcion has been called the consumer protection equivalent of Citizens United. At stake is the ability of consumers to stop corporate ripoffs via class action lawsuits, which allow lots of people with small claims to band together and bring a suit large enough to make it worth a lawyer’s time. The case could affect everything from the rights of workers to fight systemic discrimination or wage violations to the ability of cell phone customers to fight the small but lucrative rip-offs that are so common among wireless providers. As a sign of how big a case this is for corporate America, the wireless lobby has hired former Solicitor General Paul Clement, a rock star of the Supreme Court bar, to represent it on an amicus brief in the case. The parties backing AT&T include the Chamber, Comcast, Dell, and DirectTV.”

According to a Think Progress report written by Ian Milhiser about the Supreme Court’s ruling in AT & T Mobility v. Concepcion, Justice Scalia’s opinion in the case will permit corporations “to refuse to do business with anyone who refuses to sign away their right to bring a class action lawsuit if the corporation breaks the law. After Concepcion, it is only a matter of time before nearly every credit card provider, cell phone company, mail-order business or even every potential employer requires anyone who wants to do business with them to first give up their right to file a class action.” As reported by Adam Liptak in The New York Times, businesses will now be able to use standard-form contracts to forbid consumers from banding together in a single arbitration. Liptak wrote: “Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”

Milhiser also wrote that the ruling in AT & T Mobility v. Concepcion expands on an abusive practice known as “forced arbitration.”  This expansion could allow corporations to force their consumers, workers, and patients to sign away their right to sue the company in a real court.

Amanda Rice reported that the Court held that California state contract law, which provides that class-action waivers in arbitration agreements are unenforceable when certain criteria are met, is preempted by the Federal Arbitration Act. (SCOTUS blog)

In his decision Scalia wrote: “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” He said that if the case was allowed to proceed as a class action, it would run afoul of a federal law that promotes arbitration.

Writing for the minority, Justice Breyer said that the decision made at the state court level did not violate the federal law that favored arbitration. “Class arbitrations,” Justice Breyer wrote, “are perfectly appropriate ways to resolve claims that are minor individually but significant in the aggregate.” Breyer said he was puzzled by the assertion made by Scalia that there was tension between the goals of arbitrations and class treatment. “Where does the majority get its contrary idea — that individual, rather than class, arbitration is a fundamental attribute of arbitration?”

Breyer said requiring consumers to arbitrate cases on an individual basis could lead parties making claims to abandon small-money cases rather than to go forward with litigation. “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?”

Would a “rational lawyer” care to answer that question posed by Justice Breyer?


Consumer Protection’s Citizens United (Mother Jones)

Supreme Court Nukes Consumers’ Rights In Most Pro-Corporate Decision Since Citizens United (Think Progress)

The Supreme Court’s One Thousandth Cut Against Consumers (Think Progress)

Supreme Court rules against consumers. Again. (Daily Kos)

A Poor Concepcion of Consumer Rights (Huffington Post)

The AT&T v. Concepcion decision and the final oral argument of the Term. (SCOTUS Blog)

Supreme Court Allows Contracts That Prohibit Class-Action Arbitration (New York Times)

Supreme Court says arbitration agreements can ban class-action efforts (Washington Post)

After AT&T Ruling, Should We Say Goodbye to Consumer Class Actions? (Wall Street Journal)

63 thoughts on “Will the Supreme Court’s Decision in AT & T Mobility v. Concepcion Bring an End to Class Action Lawsuits Against Large Corporations?”

  1. @rafflaw —

    So because something is not perfect its not meaningful?

    With Credit Unions there is more leverage since the governing board is held accountable to the members.

    Furthermore, you are assuming that the language is there. Where do you get data to back up the “odds”? And what are the “odds” 10-1? 2-1?

  2. Pat,
    In most cases the credit union credit cards are going to be issued by a big bank or a credit union association. Odds are it will also have the arbitration language on its contract.

  3. My “solution” to this anti-consumer trend?

    My wife and I have progressively reduced the number of large businesses with will deal with.

    For example,
    1) cars – we buy our cars used, after the warrantee has expired and never direct from any dealer. This way no manufacturer can claim we signed any contract.
    2) credit cards – we have eliminate most of our credit cards and are in the process of switching to our credit union’s credit cards.
    3) banks – we don’t use banks only credit cards.
    4) insurance – northwestern mutual

    Is this perfect? No. But by reducing the number of companies we are dealing with – we reduce our exposure to forced arbitration.

  4. Consumer 11.0: Supreme Court takes a big step toward shutting consumers out
    May 01, 2011|
    By Jeff Gelles, Inquirer Columnist

    Signed up for cell-phone service lately?

    If so, maybe you remember the part where you sat down with representatives of your prospective carrier – let’s say it was AT&T Mobility – and hammered out terms of a contract.

    It was just you and AT&T at the bargaining table, unless you wisely brought your lawyers along to help. These negotiations can get pretty tricky, and AT&T surely had its high-priced legal team on hand.

    You say you don’t remember that?

    OK, I confess: That scene was imaginary. But here’s the rub: An alternate universe where it occurred would be about the only place last week’s U.S. Supreme Court ruling favoring AT&T in a class-action case makes much sense.

    Once again, a sharply divided Supreme Court issued a 5-4 ruling that seemed to be more about the pro-business results it wanted – in this case, slamming the door on consumer class actions – than about the legal arguments behind them.

    And once again, supposedly conservative justices who claim to care deeply about federalism were willing to stretch a law well beyond Congress’ intent and to tell one of the 50 states that it can’t apply its own statutes and rules.

    Before I explain further, a little history.

    The Concepcions, the California couple who filed the case, went to court contending that AT&T misled them when it billed them $30.22 for a cell phone that was supposedly free. Because there was reason to believe the charges were widespread – the carrier said it was simply assessing sales tax for the actual cost of a subsidized phone – their lawyers filed the case as a class action.

    AT&T fought them on procedural grounds: It said the Concepcions had no right to be in court at all, because their contract with the carrier required that disputes be resolved via arbitration. And it said they also had no right to claim that other customers were similarly harmed, because the Concepcions’ contract with AT&T barred them from joining in a class action – in court or before an arbitrator.

    AT&T’s solution? Customers who felt wronged could try to get their money back by filing individually for arbitration. And the company touted its unusually consumer-friendly arbitration process, under which a successful claimant could get lawyers’ fees and even a bonus award of $7,500 – if the arbitrator found he or she was entitled to more than AT&T’s final offer.

    Ruling in AT&T’s favor, Justice Antonin Scalia said the case turned on a 1925 law, the Federal Arbitration Act, that he said preempted California state law. “Arbitration is a matter of contract,” Scalia wrote, “and the FAA requires courts to honor parties’ expectations.”

    What’s the problem with Scalia’s ruling? Unless Congress intervenes, the court has essentially allowed any company that deals with consumers to mistreat them with impunity. By writing a contract that mandates arbitration and at the same time bars class actions, a company can insulate itself from the only kind of legal challenge – a class action – that can deal with a large number of small-dollar wrongs.

    In his dissent, Justice Stephen G. Breyer explained why individual arbitrations, even under terms such as AT&T’s, are an unrealistic substitute.

    Breyer noted that AT&T could dodge the $7,500 bonus offered to an individual claimant simply by offering the full value of the dispute – in this case, just $30.22 – before an arbitrator is appointed.

    Breyer reached back to an earlier appeals court case to explain what’s really at stake: “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

    The truth is that consumers have few good options when they believe they’ve been wronged for a small amount of money. Only the most aggrieved will bother to write an angry letter, complain to a government agency, or post their gripes online. Most of us won’t bother filing for arbitration unless a larger amount of money is at stake, any more than we’d contact a lawyer to sue. But we benefit indirectly when class-action lawyers recognize that an individual wrong is part of a pattern, and take steps to challenge it.

    Class actions are hardly a perfect solution, and both the courts and Congress have worked for years to refine them. But consumer lawyers can legitimately take credit for addressing problems such as unfair or deceptive bank charges, cable-television late fees, and telemarketing schemes – and, at the same time, deterring other companies from questionable practices.

  5. AY,
    Sorry for the delay in getting back….yes I think the new
    ” Head Elf ” pic is far superior 🙂

  6. Companies can block customers’ class-action lawsuits, Supreme Court rules:
    Consumers have been able to band together to sue corporations, but the Supreme Court rules in a Southern California case that firms can force customers to arbitrate their complaints individually. The ruling is seen as a major victory for corporations.
    By David G. Savage, Washington Bureau
    Chicago Tribune

    WASHINGTON — The Supreme Court gave corporations a major win Wednesday, ruling in a 5-4 decision that companies can block their disgruntled customers from joining together in a class-action lawsuit. The ruling arose from a California lawsuit involving cellphones, but it will have a nationwide impact.

    In the past, consumers who bought a product or a service had been free to join a class-action lawsuit if they were dissatisfied or felt they had been cheated. By combining these small claims, they could bring a major lawsuit against a corporation.

    But in Wednesday’s decision, the high court said that under the Federal Arbitration Act companies can force these disgruntled customers to arbitrate their complaints individually, not as part of a group. Consumer-rights advocates said this rule would spell the end for small claims involving products or services.

    In the case before the court, a Southern California couple complained about a $30 charge involving their purchase of cellphone service from AT&T Mobility. The California courts said they were entitled to join with others in bringing a class-action claim against the cellphone company.

    But the Supreme Court reversed that decision Wednesday in AT&T Mobility vs. Concepcion. Justice Antonin Scalia said companies may require buyers to sign arbitration agreements, and those agreements may preclude class-action claims. Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel A. Alito Jr. formed the majority.

    Scalia said companies like arbitration because it is efficient and less costly. “Arbitration is poorly suited to the higher stakes of class litigation,” he said.

    But the dissenters said a practical ban on class action would be unfair to cheated consumers. Justice Stephen G. Breyer said the California courts had insisted on permitting class-action claims, despite arbitration clauses that forbade them. Otherwise, he said, it would allow a company to “insulate” itself “from liability for its own frauds by deliberately cheating large numbers of consumers out of individually small sums of money.”

  7. AT&T Mobility v. Concepcion: The Corporate Court Does it Again
    Posted: 04/29/11
    By Nan Aron
    Huffington Post

    The Corporate Court is at it again. This time the case is AT&T Mobility v. Concepcion, and this week’s 5-4 decision in favor of the cell-phone giant is yet another far-reaching betrayal of some of the most fundamental principles of American justice.

    In this case, big business, with AT&T as its stalking horse, asked the Supreme Court to protect it from all those cheeky consumers and impudent employees who might have the temerity to complain that they’re being ripped off or discriminated against. The ultra-conservative majority on the Court found a way to keep all those annoying individuals from banding together in group arbitration or in the courts, where they would have the benefit of lawyers and all those pesky constitutional rights and rules of civil procedure.

    The result of the decision by Justices Scalia, Roberts, Thomas, Alito, and Kennedy is to make sure that when people like you enter the legal arena against a corporation, you go all by yourself into a system that’s rigged against you.

    Even if your name isn’t Concepcion or you don’t have an AT&T cell phone, this case is about you. Almost all of us operate in a world filled with employment agreements or corporate contracts for things like cell phones, credit cards, or online accounts. But if at some point you discover you’ve been cheated or your civil rights have been violated, you’ll find that that you’ve signed away your ability to enter a courthouse to fight back. In this country, you can’t buy a cell phone or take a job without agreeing to disempower yourself.

    The culprit is right there in the fine-print or in the lengthy agreement you scroll through without reading before you click on the button that says, “I agree.” The contract mandates that if the company does you wrong, you’re absolutely forbidden to get together with others similarly harmed and sue in court or demand group arbitration. If you still want to complain, you have to submit to binding arbitration for your case alone. And who sets up the arbitration system? Why, the corporation, of course!

    California had a rule that agreements that compel consumers or employees to give up their rights to form class actions are “unconscionable,” and therefore invalid, when they protect companies that try to cheat lots of people out of small sums. The Supreme Court this week said that the Federal Arbitration Act was in conflict with California’s rule, even though all of the Court’s past rulings and the long-standing interpretation of the statute said otherwise. (So much for conservatives’ belief in states’ rights. When the conflict is between profits and principles, this Court has a clear favorite.)

  8. BIL, Elaine M., You raise a very good point regarding employment law for individuals. I see that there are impiations for eployees covered by collective bargaining agreements also.

    Currently in Federal labor law, labor contracts nor the employer (agency) can preclude an aggrieved employee (or group of aggrieved group of employees) from proceeding to court over certain statutory violations of an employee’s rights when a contract providing for binding arbitration is present and speaks to the same issues. This may also be the case with private labor unions.

    Employees can have a choice weather to use the contract or the statutory process, with or without union assistance in that forum. Language must be present giving employees (and the union) the right to choose the appropriate forum. Unions only own the arbitration process so they can’t restrain employees from choosing other forums and may want to be part of that process.

    Contracts can (but do not have to) exclude certain statutory matters from their grievance process and still have union representatives represent an employee or groups of employees in a statutory claim. My union represented several groups of employees in both forums.

    I would think that this ruling could easily have a detrimental effect on employee rights in general and union rights in both the public and private sector. It might take some time and a few clarifying court decisions or alterations to the Federal laws governing collective bargaining, but in this political atmosphere it’s not a stretch to envision that just belonging to a union that has binding arbitration may erode what little statutory protection employees have.

  9. AY, This ones too small to discern the actual detail. It does have the advantage of being mentally morphed by the beholder into a number of different pictures though. I’ve decided that either the picture itself is ‘dirty’ or I am.

  10. AY,

    “Canadian Eh!
    1, May 1, 2011 at 11:57 am
    I liked last night’s much better”


    I’m with Canadian Eh

  11. AY,

    Now there you go! A quintessentially American elf classic.

  12. This is truly the Head Elf Master….but if you think I should change it how about this one….

    This internet surgery is getting …. well…there are just so many opportunities…. cheaper than Plastic Surgery…

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