This document summarizes the legal history of arbitration and class action waivers in the United States. It discusses key Supreme Court cases like AT&T Mobility v. Concepcion that have established the Federal Arbitration Act preempts state laws restricting class waivers in arbitration agreements. It also analyzes different court responses to these rulings and potential challenges to the enforcement of class waivers going forward, such as proposed legislation.

2. Courts reluctant to enforce for many years

4. Class waivers not unconscionable

6. “Switch to class arbitration makes process slower, more costly and more likely to generate procedural morass.”

7. Class arbitration requires procedural formality.

8. Class arbitration increases risk to defendants – no review forces “in terrorem” settlement.

9. Arbitration is poorly suited to high stakes class litigation.

10. Does Concepcion apply to state law?

12. Focus of hostility in the employment arena

13. Judicial hostility and precedent in employment cases applied to consumer cases with the prevalence of class action waivers used in “bill stuffers”

14. Two separate mandatory judicially created tests for enforcement of class action waivers:

15. Unconscionability (Discover Bank); and

16. Vindication of unwaivable statutory rights (Gentry)

18. Federal district courts applying or expanding AT&T Mobility:

19. To preempt public policy against arbitration of injunctive relief claims brought under the CLRA and UCL

20. Arellano v. T-Mobile USA, Inc., 2011 WL 184712 (N.D., Cal., May 16, 2011)

21. Zarandi v. Alliance Data Systems Corp., 2011 WL 1827228 (C.D. Cal, May 9, 2011)

22. In re Apple and AT&T iPad Unlimited Data Plan Litigation, 2011 WL 2886407 (N.D. Cal., July 19, 2011)

23. To suggest (without holding) that Gentry Rule is also preempted by the FAA.

24. Morse v. ServiceMaster Global Holdings, Inc., 2011 WL 3203919 (N.D. Cal., July 27, 2011)

25. Nakano v. ServiceMaster Global Holdings, Inc., 2011 WL 3206592 (N.D. Cal., July 27, 2011)

26. To preempt California’s CLRA anti-waiver provision.

27. Boyer v. AT&T Mobility Services, Inc., 2011 WL 3047666 (S.D. Cal., July 25, 2011)—holding that despite contrary California appellate authority, the federal court is bound by federal resolution of issues governed by federal law.

28. Federal district courts limiting AT&T Mobility:

29. Carving out PAGA claims (Private Attorney General Act, enacted to obtain enforcement of Labor Code violations) from AT&T Mobility’s reach.

30. Applying Gentry Rule without holding whether Gentry Rule is preempted.

31. Plows v. Rockwell Collins, Inc., 2011 WL 3501872 (C.D. Cal, August 9, 2011)

32. California Courts of Appeal limiting AT&T Mobility:

33. Applying Gentry Rule to require additional evidence in the record for the court to determine whether the Gentry Rule has been met, without holding whether Gentry Rule is preempted.

34. Brown v. Ralphs Grocery, Co., 197 Cal.App.4th 489 (Cal.App.2d, July 12, 2011)—Petition to Review pending

35. Declining to extend AT&T Mobility to preempt all California law regarding unconscionability, yet enforcing arbitration agreement

37. Williams v. Securitas Sec. Services USA, Inc., 2011 WL 27113741 (E.D. Pa., July 13, 2011)

38. NAACP of Camden County East v. Foulke Management Corp., 2011 WL 3273896 (N.J. Super. A.D., August 2, 2011)

39. Preemption applies to any unconscionability defense against a class action waiver.

40. Day v. Persels & Associates, 2011 WL 1770300, M.D. Fla., May 9, 2011

41. AT&T Mobility applies to preempt New Jersey case authority holding that class action waivers are unconscionable.

43. CFPB to study arbitration agreements

44. Dodd-Frank Act

45. Enhanced FTC rule-making authority

47. Arbitrators – specialized

48. How many arbitrators

49. Forum – See American Arbitration Association, Due Process Protocols

50. Division of costs?

51. What types of disputes

52. Procedural rules

53. Rules of Evidence?

54. Appeal rights

55. Consistency with other documents

56. Whether to sell if customer refuses to sign

58. Jury trial waivers

59. Class Action Fairness Act (CAFA), 11 U.S.C. 1332(b)