The question in Concepcion is whether companies can use the fine print of take-it-or-leave-it contracts to strip consumers and employees of the opportunity to bring or participate in a class action. Companies accomplish this by embedding class-action bans in mandatory arbtiration clauses, thereby precluding classwide proceedings in any forum (court or arbitration). Thus, the case isn’t really about arbitration at all; it’s about whether stronger parties can use contracts of adhesion to exempt themselves from accountability for systemic wrongdoing.
In our brief, we argue that the Federal Arbitration Act does not trump state-law rulings holding that class-action bans, where they would have the effect of exculpating the defendant from liability, are unconscionable and unenforceable. The amicus briefs on our side are due next Wednesday, October 6.
In related news, those of you in the Washington area may be interested in attending an event hosted by the American Constitution Society on October 19 at noon, at the National Press Club, at which participants will discuss the case. I won’t be speaking, nor will my opposing counsel. But you’ll get to hear what I expect will be some spirited debate between Paul Bland, Nina Pillard, Alan Kaplinsky, and Steve Ware. Lunch will be served.
You can read more about the Concepcion case, including all of the briefs filed so far, here.