Consumer Law

Some Commentary on Concepcion

By Deepak Gupta

Here's a roundup of some recent commentary on AT&T v. Concepcion, the Supreme Court on class-action bans.  You can find more commentary, the briefs, and other information on this page.

• Bonnie Robin-Vergeer, at D.C. Legal Aid's Making Justice Real blog, discusses an amicus brief filed on behalf of a big coalition of legal aid and consumer groups. She says that [t]he case has the potential to be a blockbuster for consumer rights. . . . . [I]f the Court accepts AT&T?s position, businesses could effectively strip consumers of their right to pursue small claims in any forum because, for small individual claims, classwide proceedings often offer the only effective means for consumers to obtain redress and to force businesses to halt illegal practices." 

• At its Text & History blog, the Constitutional Accountability Center discusses its amicus brief, focusing on federalism. ?Concepcion will test whether the Court?s federalism principles are trumped by its favoritism toward corporate America,? says Doug Kendall. ?Concepcion should be an easy case,? Kendall said, ?because state courts are vital in protecting the rights of American consumers, and the Federal Arbitration Act specifically preserves a critical role for state law."

• In a masthead editorial this past Sunday, The New York Times mentioned the case as part of a broader discussion of the Roberts Court and preemption. A win for the respondents in Concepcion, the Times opines, "would be good for consumers."

• Ian Millhiser at the Center for American Progress, observes that "Class-action lawsuits enable many people with small dollar losses to join together in a single suit, and they make sure that corporate America cannot continuously break the law a few dollars at a time. Yet Concepcion could allow corporations to force consumers to sign both a forced arbitration agreement and a no-class-action agreement?a step that would further erode ordinary Americans? power to hold big-moneyed interests accountable for lawbreaking."

• At the ADR Prof Blog, Richard Reuben of Missouri Law, an expert on arbitration law, observes that "if the 9th Circuit is reversed, one may reasonably question what is left of Section 2?s savings clause. After all, all Discover Bank did was apply general unconscionability law to the class arbitration context ... If that?s preempted, then how would any application of general contract law to arbitration be able to withstand preemption?"

Full post as published by CL&P Blog on October 09, 2010 (boomark / email).