In 2011, the United States Supreme Court in AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011) (“Concepcion”) validated adhesive arbitration agreements. Concepcion held that California’s Discover Bank rule, which attempted to ban class action waivers in most consumer contracts, was preempted by the Federal Arbitration Act (“FAA”). While the U.S. Supreme Court explicitly upheld class action waivers in the consumer context, this decision left considerable room for the lower courts to interpret class action waivers found in employment agreements.
Meghan Gonyea, THE FUTURE OF CLASS ACTION WAIVERS IN EMPLOYMENT AGREEMENTS: LEWIS CREATES A FRAMEWORK FOR THE UNITED STATES SUPREME COURT, 9 Arb. L. Rev. 125 (2017).