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After Concepcion

Many members of the class action bar believe that the U.S. Supreme Court's decision in AT&T Mobility LLC v. Concepcion means the end of all class actions.  We beg to differ.  For sure, companies that have contracts with consumers will add arbitration provisions to their agreements, if they have not done so already.  So we expect to see arbitration provisions in terms of service agreements with telephone and Internet service providers, bank and credit card issuers, automobile manufactures and many travel and leisure firms. No doubt, even companies that do not sell directly to consumers may join in on the action.  We expect to see arbitration provisions in unusual places, perhaps printed on the box your morning cereal or in the owner's manual of your next TV. 

But the insertion of arbitration provisions does not mean that consumer advocates will be unable to find for consumers relief from unfair or deceptive business practices. 

We expect that the space left by the decrease in class action litigation will be filled by the spread of "mass" arbitrations.  Law firms can harness the power of social networking to gather large numbers of claims which can be arbitrated using mass litigation techniques, creating both economies of scale and settlement leverage. As big law defense attorney Jeffrey S. Jacobson recently asked, "what would happen if a consumer group or a savvy plaintiffs' lawyer could cause a complaint to 'go viral' giving consumers motive and means to file thousands of similar arbitration demands and to refuse settlement offers"?*  We are look forward to finding out.

*Jeffrey S. Jacobson, "5 Questions After AT&T v. Concepcion." Law360, May 9, 2011.


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