Litigation Attorney Authors Article on Aftermath of Concepcion U.S. Supreme Court Decision

The Recorder (California) | January.18.2013

This article, authored by litigation career associate Heather Boylan Clark, discusses the application and impact of the U.S. Supreme Court's ruling in AT&T Mobility v. Concepcion. An excerpt from the article is included below.

Despite the Supreme Court's seemingly clear directive that the FAA pre-empts state laws deeming class action waivers unconscionable, the scope of this pre-emption in California has been unclear in the nearly two years since Concepcion was decided. While many California federal courts have applied Concepcion broadly, only one U.S. Court of Appeals for the Ninth Circuit case examining Concepcion is currently good law.

In last year's Coneff v. AT&T, the Ninth Circuit considered a challenge to the district court's ruling that a class action waiver contained in AT&T's service agreement was substantively unconscionable under Washington law. Plaintiffs had entered into service agreements with AT&T that required individualized arbitration of all disputes and claims and prohibited both class actions and class arbitrations. In upholding the class action waiver in Coneff, the Ninth Circuit expressly rejected the notion that an implied exception must be read into the Concepcion opinion to permit state laws to "invalidate class action waivers when such waivers preclude effective vindication of statutory rights." The court reversed and remanded the case to the district court.