Jenner & Block

"Navigating the Thicket of California Law on Class Action Waivers," Los Angeles Daily Journal

In this article, Jenner & Block Associates Kelly M. Morrison and William K. Pao discuss current California law on class action waivers and the potential impact of a pending United States Supreme Court decision in AT&T Mobility LLC v. Concepcion.  They note that after a pair of California Supreme Court decisions in 2005 and 2007 “raised the bar for enforcing consumer class action waivers in California,” courts applying California law have almost invariably invalidated class action waivers in consumer agreements as unconscionable.  The issue before the Supreme Court in Concepcion is whether the Federal Arbitration Act pre-empts invalidation of class action waivers on the basis of California’s principles of  unconscionability.  If the Court rejects AT&T’s argument that the FAA does pre-empt California’s unconscionability doctrine, Ms. Morrison and Mr. Pao maintain that this “should not be viewed as the last stand for class action waivers.”  Rather, because “Whether a class action waiver is unconscionable in California ultimately depends on ‘the facts and circumstances developed during the course of litigation,’” they advise practitioners representing companies doing business in California to distinguish their cases from decisions invalidating class action waivers, and they offer several suggestions for ways in which this can be done.