Concepcion's Pro-Defendant Biasing of the Arbitration Process: The Class Counsel Solution

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. This investment advantage enables the defendant to wield superior litigation power against each plaintiff skewing the outcome of individual arbitrations in its favor and frequently rendering claims not worth filing. Concepcion perpetuates the bias by precluding the use of a class arbitration solution. We propose that courts neutralize the Concepcion bias by appointing class counsel to represent each plaintiff in individual arbitrations. Without threatening Concepcion's holding that arbitral efficiency precludes class arbitration unless the parties specify otherwise, the class counsel solution equalizes the parties' investment incentives to transform individual arbitrations into a socially useful legal system for promoting the deterrence, compensation, and other public policy objectives of federal and state substantive law

One Sick Child Away From Being Fired: When "Opting Out" Is Not an Option

Professional women are not the only Americans whose jobs are in jeopardy because of work/family conflict. This report discusses a study of 99 union arbitrations that provide a unique window into how work and family responsibilities clash in the lives of bus drivers, telephone workers,construction linemen, nurses aides, carpenters, welders, janitors, and others -- men as well as women -- in working-class jobs.The media tends to cover work/family conflict as the story of professional mothers "opting out" of fast-track careers. Surveys confirm that working class Americans feel work/family conflict acutely: two-thirds of unionized fathers said they were unhappy with the amount of time they dedicated to their children; half of the mothers agreed.The arbitrations communicate the stories of Americans caught between inflexible jobs,lack of resources,and their commitment to do right by their families. The report resulted in six major findings

The Politics of Access: Examining Concerted State/Private Enforcement Solutions to Class Action Bans

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in any form of collective litigation. This Article, written for a colloquium dedicated to the persistent problems of representation and access, explores the politics of regaining citizens’ rights to aggregate litigation in the wake of the Supreme Court’s broad endorsement of these class-ban provisions in AT&T Mobility LLC v. Concepcion. Given the political climate in Washington, D.C., it is a safe bet that federal legislation will not overrule Concepcion anytime soon. Meanwhile, state legislation constraining class-banning arbitration clauses faces the unremitting threat of FAA preemption. But scholars and access-to-justice advocates have begun to focus on a third avenue for overcoming claims—suppressing class action bans, referred to in this Article as “concerted state/private enforcement solutions.” Concerted state/private enforcement can take several forms—whether it’s state Attorneys General engaging private counsel to pursue parens patriae damages cases under the AG’s direction, utilizing a qui tam model, or creating a regime where government enforcers obtain liability verdicts that private parties can use as conclusive proof in individual arbitrations. Each holds its own promises and poses its own challenges. But unlike head-on state legislation, the concerted state/private options are all viable as a legal matter. The question of political viability, however, is more nuanced. This Article explores the unique political calculus for states confronting the implications of the various forms of state/private concerted enforcement activity as a way to restore their citizens’ access to justice in the post-Concepcion era

Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns

This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention - the primary international enforcement mechanism for arbitral awards - will soon arise. This article takes the view that awards arising out of properly conducted class arbitrations should be treated no differently than those arising out of other sorts of arbitration and argues that the presumption of enforceability under the New York Convention should be applied to class awards to the same extent as it is applied to bilateral awards

Class Dismissed: Compelling a Look at Jurisprudence Surrounding Class Arbitration and Proposing Solutions to Asymmetric Bargaining Power Between Parties

Class actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines. Corporations litigated such class arbitrations’ legitimacy; their efforts are catalogued in a series of U.S. Supreme Court challenges that started in the early 2000s and continue to the present day. In many instances, these seemingly mundane cases resulted in sharply divided holdings by the Court’s justices; most notable of these were AT&T Mobility, LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, where the Court upheld individual arbitration provisions in pre-dispute contracts, and foreclosed plaintiffs’ access to class arbitrations and class actions in many contractual contexts. This Note begins by summarizing the jurisprudential stance presently assumed by the Supreme Court in cases addressing arbitration provisions. It subsequently outlines the kaleidoscopically variant viewpoints on arbitration clauses from legal scholars, large law firms, and media outlets. Finally, the Note posits several solutions to the growing problem many individuals face when they enter into some of the most routine contracts of everyday life: the foreclosure of their ability to proceed as a class in a collective action against a plaintiff and effectively redress their grievances

\u3cem\u3eLamps Plus, Inc. v. Varela\u3c/em\u3e: Dark Times Ahead for Class Arbitrations

The Federal Arbitration Act (“FAA”) was enacted in 1925 to combat judicial hostility towards arbitration. Over the years, the U.S. Supreme Court has interpreted this statute as evidencing a pro-arbitration policy and has upheld the use of arbitration clauses in a variety of contracts. Unfortunately, while the FAA was able to overcome the hostility towards arbitration, it was not able to stop the Court from finding a new target: class arbitrations. This Comment analyzes the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela. In critiquing the Court’s continued erosion of the availability of class arbitrations, this Comment considers the negative effects of the pro-business decision on employees and consumers who are subject to arbitration clauses. This Comment concludes that congressional action is needed to reverse the years of flawed class arbitration jurisprudence

AT&T Mobility and the Future of Small Claims Arbitration

This article focuses on small claims arbitration and examines the impact of AT&T Mobility on the legitimacy of the process. Part II of the article describes the Supreme Court’s AT&T Mobility decision, which held that the FAA preempts a California rule that declared a class arbitration waiver in a consumer contract unconscionable. Part III describes the primary features of the two options remaining for the Concepcions—small claims court and small claims arbitration, as well as their perceived advantages and disadvantages. Part IV demonstrates that courts have endorsed simplified arbitration. Part V examines whether simplified arbitration is a fair method of resolving small arbitration claims. Part VI explores other dispute resolution models for resolving small dollar value commercial disputes, including on-line dispute resolution, telephonic arbitration, and a small claims arbitrator. Part VII concludes by urging dispute system designers to consider changing the default mechanism of arbitrating small claims cases from paper or “desk” arbitration to a live hearing before a small claims arbitrator

International Arbitration and the Republic of Colombia: Commercial, Comparative and Constitutional Concerns From a U.S. Perspective

This article undertakes the first comparative analysis of Colombian arbitration law in English, setting Colombian statutory and case law side by side with international and U.S. law to provide U.S. parties with the information they need to (1) evaluate the risks and benefits associated with entering into an arbitration agreement with a Colombian party and (2) establish the kinds of procedures needed to provide optimal protection of the arbitral process and any resulting award. Not only does this research discuss important comparative and commercial matters, it also considers how a unique type of constitutional challenge - the acción de tutela - affects arbitration law in Colombia