By John E. Porter and Ronald M. Oster
Introduction : On April 27, 2011, in AT&T Mobility LLC v.
Concepcion (2011)___ U.S. ___, 131
S.Ct. 1740, 179 L.Ed.2d 742, 2011 U.S. LEXIS 3367, a sharply divided U.S.
Supreme Court ruled that the Federal Arbitration Act (FAA) preempted
California's judicially created Discover Bank rule, which found waivers
of class arbitration in most consumer contracts to be unconscionable and
therefore unenforceable. Specifically, the Supreme Court held that the FAA
prohibits states from conditioning the enforceability of certain arbitration
agreements on the availability of class wide arbitration procedures.
The AT&T Mobility decision was foreshadowed by the Supreme Court's
2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010)
599 U.S. ___, 130
S.Ct. 1758, 176 L.Ed.2d 605, 2010 U.S. LEXIS 3672, in which the Court held
that when an arbitration agreement is silent on the question of whether class
action proceedings are authorized, the parties' consent to class arbitration
may not be inferred absent evidence of the parties' intent or a governing rule
of law authorizing that inference. Taken together, Stolt-Nielsen and AT&T
Mobility may lead to the effective demise of class arbitrations unless
those decisions are abrogated by federal legislation or subsequent Supreme
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ABOUT THE AUTHOR(S):
John Porter is a partner with Paul, Hastings, Janofsky & Walker LLP
in its Tokyo office. In his 27 years of practice, Mr. Porter has specialized in
representing Asian companies in intellectual property, commercial, and
technology-related disputes. Mr. Porter graduated from Stanford Law School in
1983. Mr. Porter was a member of the Stanford Law School Board of Visitors from
1990 to 1994 and from 2003 to 2005. Since October 2007, Mr. Porter has served
on the California Judicial Council's Advisory Committee on Civil Jury
Ronald Oster is a partner with Paul, Hastings, Janofsky & Walker LLP
in its Los Angeles office. He is a former Chair of the firm's Litigation
Department, and for over 30 years his practice has emphasized complex business
trials and appeals. He is a member of the LexisNexis California Advisory Board.
Mr. Oster graduated from Stanford Law School in 1973. He is married to Diana
Wheatley, Judge of the Los Angeles Superior Court.