Partner in Employment Law, John Lewis commented on the U.S. Supreme Court April decision in AT&T Mobility v. Concepcion in “Judge Compels Arbitration in Secretary's Suit Against O'Melveny,” which appeared on AM Law Daily July 26, 2011.
The U.S. Supreme Court ruled that class action plaintiffs couldn't escape individual consumer arbitration clauses by invoking a California statute, causing defense lawyers to realize that companies could use the decision to combat employee class actions too. A few recent decisions, however, demonstrate the limit of Concepcion's reach when it comes to employee class actions.
For example, a ruling by San Francisco federal district judge Edward Chen granted a motion by O'Melveny & Myers to compel arbitration with a former employee. But Judge Chen pointed out that arbitration agreements are “still subject to unconscionability analysis.” And, Judge Chen's decision is not the first to illustrate that Concepcion does not automatically make class action waivers enforceable.
"While many people thought Concepcion was the end of the line, now we're seeing the reaction to Conception with district courts distinguishing it on various grounds," said Lewis.