ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.
Yesterday, I participated in a panel reviewing AT&T v. Concepcion and its implications for the future. The panel included a defense lawyer and a lawyer from Public Justice. Efforts to limit Concepcion through litigation have not fared well to this point, but the better arguments seem to be that Concepcion could be limited to its facts (a very favorable arbitration clause), it may not apply in state court (if Justice Thomas continues to believe that the FAA does not apply in state court), plaintiffs must still have an opportunity to vindicate their statutory rights and they can’t do that if they can’t pursue a claim at all, and, finally, a more extensive factual record supporting the argument that plaintiffs cannot bring a claim in arbitration (i.e. it is not financially feasible). It is an uphill road for plaintiffs. One question came up at the end of the session and I wondered if anyone knows the answer – -is AAA updating their class action arbitration rules in response to Concepcion? Please comment below if you know.
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