U.S. Arbitration Law in the Wake of AT&T v. Concepcion
Welcome everyone. I would like to commend the editors of the Yearbook on Arbitration and Mediation on their choice of topic for today's symposium:"U.S. Arbitration Law in the Wake of AT&T Mobility v. Concepcion." Jean Sternlight has written that the Concepcion case represents a "tsunami" with policy implications that, if not curtailed, will substantially harm consumers, employees, and perhaps others by permitting companies to use arbitration clauses to exempt themselves from class actions - thereby giving them free rein to engage in fraud, torts, discrimination and other harmful acts. The Columbia Business Law Review published an article with a slightly different take on the case. It was entitled "Much Ado About Nothing." It noted that most attempts to remedy serious corporate injury, e.g., tomacco, asbestos, defective pharmaceuticals and the like, don't depend on a contractual relationship woth the corppration in question, and hence won't be affected by class action waiver clauses. Most of the headlines since Concepcion seem to side with Professor Sternlight. One read, "The Corporate Court Does It Again." Another asked, "Has Consumer Protection Law Been Completely Preempted?" Many more proclaim the end of class actions as we know them. Nonetheless, in one of the first post-Concepcion decisions by an official body, the NLRB surprised many observers by declaring, despite Concepcion, that a class action waiver in the context of a collective bargaining agreement is an unfair labor practice and not enforceable. Many wonder whether the new Federal Consumer Financial Protection Bureau will join the NLRB in issue regulations limiting the predicted effects of Concepcion with respect to consumers.
Phillip J. McConnaughay, Dean's Welcome, 4 1 (2012).