Our April 2012 column, " Arbitration Clauses Displace Consumer and Class Lawsuits,"1 reported on a growing trend for contracts of all kinds to incorporate arbitration clauses that require the contracting parties to arbitrate any disputes outside of the court system. Further, such arbitration provisions increasingly contain "class action waivers" in which the claimant is not to pursue class actions. The enforceability of such arbitration and class action waiver stipulations was boosted by the U.S. Supreme Court’s decision in 2011 of AT&T Mobility v. Concepcion,2 a 5-4 ruling that the Federal Arbitration Act (FAA) preempts state laws that make specific categories of claims nonarbitrable. Our article observed that such arbitration provisions would govern even personal injury actions.3 Our April article closed, "Welcome to the brave new world of mandatory arbitration."
In this column we forge ahead with discussion of some new developments on the arbitration/class action waiver front and, so, do not repeat case law discussed in the prior article. The reader is assumed to be at least somewhat familiar with the topic. One new development is that the U.S. Supreme Court is scheduled to hear oral argument on Feb. 27, 2013, in a case called American Express v. Italian Colors Restaurant (Sup. Ct. No. 12-133).
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