In opinions issued the same week, the 11th and 3rd Circuits affirmed district court orders granting defendants’ motions to compel arbitration on an individual, rather than on a class-wide, basis over plaintiffs’ objections that class-arbitration waiver clauses in their credit card and wireless telephone service agreements were unconscionable and unenforceable. The circuit courts followed Supreme Court precedent from AT&T Mobility LLC v. Concepcion, which held that Section 2 of the Federal Arbitration Act, which provides that arbitration agreements are “valid, irrevocable, and enforceable,” preempts state laws that hold class-arbitration waivers to be unconscionable and unenforceable. Consistent with the Supreme Court’s reasoning, the circuit courts found that preemption trumps the public policy argument, accepted by some other courts, that when arbitration is mandated, “class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system.” Homa v. American Express Co., No. 11-3600 (3rd Cir. Aug. 22, 2012); Pendergast v. Sprint Nextel Corp., No. 09-10612 (11th Cir. Aug. 20, 2012).
This post written by Abigail Kortz.
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