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Posts Tagged ‘Class Action Arbitration’

Oral Argument to be Held Tomorrow in SCOTUS AT&T Mobility Class Waiver Case

November 8th, 2010 ADR Social Media, Arbitration Agreements, Arbitration Practice and Procedure, Class Action Arbitration, Class Action Waivers, Guest Posts, Practice and Procedure, United States Supreme Court Comments Off on Oral Argument to be Held Tomorrow in SCOTUS AT&T Mobility Class Waiver Case

The United States Supreme Court will hear oral argument in AT&T Mobility LLC v. Concepcion, No. 09-893, tomorrow, November 9, 2010.  (Read about the case here, here, here and here.)  If you are interested in reading the transcript, you should be able to access it here by approximately 4:00 p.m. tomorrow.  

Earlier this morning the Disputing blog published the first installment of a multi-part guest post we are writing, entitled “AT&T Mobility v. Concepcion:  Can Discover Bank Withstand Stolt-Nielsen Scrutiny?”  (Read it here.)  Our focus in that post will be how Stolt-Nielsen bears on the Federal Arbitration Act preemption questions before the Court, and in particular, what (if anything) we can glean from the upcoming oral argument about those questions.  

The first installment briefly describes the preemption issues and comments on the uncertainty surrounding implied preemption because of Associate Justice Clarence Thomas’ rejection of that doctrine in his Wyeth v. Levine, 555 U.S. ___, 129 S. Ct. 1187 (2009), concurring opinion, see 129 S. Ct. at 1205 (Thomas, J., concurring), and the deference he accords state law in Federal Arbitration Act cases which (unlike AT&T Mobility) are brought in state court.  See, e.g., Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440 (2006) (Thomas, J., dissenting) (“[I]n state-court proceedings, the FAA cannot be the basis for displacing a state law that prohibits enforcement of an arbitration clause contained in a contract that is unenforceable under state law.”).

The first installment also poses some examples of the types of Stolt-Nielsen-related questions Justices might ask the Concepcions’ counsel at the argument.  It will be interesting to see whether the Court asks questions of this type, and, if so, what the Concepcions have to say in response.     

The number of future installments will depend on what transpires at the argument.  We suspect that there will be at least two.  

We would like to thank Karl Bayer and Beth Graham of the Disputing blog for featuring us as an AT&T Mobility  guest blogger.

U.S. Law Week Quotes Philip J. Loree Jr. Comments on SCOTUS AT&T Mobility LLC v. Concepcion Class Waiver Case

October 23rd, 2010 Arbitration Agreements, Arbitration Practice and Procedure, Class Action Arbitration, Class Action Waivers, United States Court of Appeals for the Ninth Circuit, United States Supreme Court Comments Off on U.S. Law Week Quotes Philip J. Loree Jr. Comments on SCOTUS AT&T Mobility LLC v. Concepcion Class Waiver Case

On October 14, 2010 I was interviewed by Tom P. Taylor, a reporter for The United States Law Week, about the AT&T Mobility LLC v. Concepcion case (blogged here, here, here and here), which will be argued before the United States Supreme Court on November 9, 2010.  On October 19, 2010 Tom’s excellent article on AT&T Mobility was published in 79 U.S.L.W., No. 14 (October 19, 2010) (BNA), and he extensively quoted my comments in it.   

U.S. Law Week is a subscription only publication, but I received permission from the Bureau of National Affairs (“BNA”) to post a copy of the article on my LinkedIn profile.  So, if you are a member of Linkedin, you can access a copy of the article here (it does not appear in my “public” LinkedIn profile).

We would like to thank Tom for conducting a very professional interview and following up with a well-written, comprehensive and informative article about this critically important case.

We are following AT&T Mobility closely, and will be commenting further on it in the near future.  I am also working on a guest-post about the case for another ADR-oriented blog.  Stay tuned for details….

Stolt-Nielsen Oral Argument Analysis: Part II

December 16th, 2009 Arbitrability, Authority of Arbitrators, Class Action Arbitration, Class Action Waivers, Consolidation of Arbitration Proceedings, United States Supreme Court 3 Comments »

Introduction

On December 9, 2009 the United States Supreme Court held oral argument in Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (oral argument transcript here).  Stolt-Nielsen concerns whether class or consolidated arbitration may be imposed on parties whose contracts are silent on that point, and we have written extensively on it, including a series of guest-post articles for the Disputing blog.  (Posts available here,  here, here, here, here, here, here, here and here.)  

Former Solicitor General Seth Waxman, a partner of the prestigious law firm of Wilmer Cutler Pickering Hale & Dorr LLP, and Chair of the firm’s Appellate and Supreme Court Litigation Practice Group, represented the Stolt-Nielsen petitioners before the Court (Mr. Waxman’s bio is here).  Georgetown University Law Center Professor Cornelia T.L. Pillard represented respondent AnimalFeeds.  (Professor Pillard also represented the Bazzle respondents in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003)).  Both attorneys did a very admirable job of presenting their cases on behalf of their clients. 

On December 13, 2009  we posted Part I of our analysis of the oral argument (Part I here).   In this Part II we focus on what transpired with respect to the first of the four key, interrelated issues raised by the Justices and identified in Part I:  The scope of the submission and the corresponding scope of the arbitrators’ authority.  We shall address the remaining three in one or more future posts.  Continue Reading »

Feeney v. Dell Inc.: A Critical Analysis

July 17th, 2009 Arbitrability, Class Action Arbitration, Class Action Waivers, Massachusetts Supreme Judicial Court 3 Comments »

Introduction

In part I of a two-part post (here), we summarized the Supreme Judicial Court of Massachusetts’ decision in Feeney v. Dell Inc., ___ Mass. ___, slip op. (July 2, 2009).  The Court there refused to enforce an arbitration agreement in a consumer contract because it contained a class action waiver that the Court found violative of Massachusetts public policy favoring class actions under G.L., c. 93A, and which the Court found not to be severable from the remainder of the arbitration agreement.  The Court also refused to enforce on public policy grounds a choice-of-law clause providing that Texas law — which apparently permits class action waivers — would govern the parties’ agreement.  In this part II we discuss whether the decision comports with the Federal Arbitration Act.

The critical issue in Feeney was whether a state public policy against class action waivers was preempted by the Federal Arbitration Act, the preeminent purpose of which is to enforce according to their terms arbitration agreements falling within its scope.  With all due respect to the SJC, we think Feeney was a tough case and that the preemption issue was a close call.  The Court obviously worked hard to justify the outcome and drilled down on the preemption issue, but at the end of the day its arguments simply proved too much.  Continue Reading »

More on Stolt-Nielsen: Shouldn’t the Supreme Court Also Grant Certiorari in the American Express Merchants’ Litigation?

June 17th, 2009 Appellate Practice, Arbitrability, Authority of Arbitrators, Class Action Arbitration, Consolidation of Arbitration Proceedings, United States Court of Appeals for the Second Circuit, United States Supreme Court 5 Comments »

On June 15, we reported briefly on the grant of certiorari in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009) (post available here).  As readers will recall the issue before the Court is whether imposing class arbitration on a party whose arbitration clause is silent on that issue is consistent with the Federal Arbitration Act. 

On May 29, 2009 American Express filed a petition for a writ of certiorari in the American Express Merchants’ Litigation, in which the United States Court of Appeals for the Second Circuit held that a provision in an arbitration agreement forbidding class action arbitration was invalid and unenforceable under the circumstances of that case.  See Re American Express Merchants’ Litigation,  554 F.3d 300 (2d Cir. 2009), petition for cert. filed (08-1473) (May 29, 2009).  (A copy of the Second Circuit decision is here, and the Supreme Court Docket sheet is here.)   Opposition papers are due June 29, 2009.  Continue Reading »