This web page includes materials authored by Public Justice as well as other law firms.  We are grateful to the attorneys and firms who have permitted us to post their work on this site. If you learn of a new case, brief, or other resource you think we should consider adding to this page, please contact Leslie Bailey at lbailey@publicjustice.net.

(Last updated April 17)

Helpful Post-Concepcion court rulings 

This list focuses on cases where courts addressed the enforceability of a class action ban, a statutory right to collective action, or the question of whether Concepcion excuses the defendant’s waiver of its right to arbitrate.  In addition, many courts have held that challenges to arbitration clauses based on unconscionability of terms other than a class action ban—for example, arguments that a clause is one-sided—are not preempted by the FAA under Concepcion.  This list does not include those cases.

1. In re American Express Merchants’ Litigation, No. 06–1871, 2012 WL 284518 (2d Cir. Feb. 1, 2012) (“Amex III”)

• In this federal antitrust case, after the Second Circuit held that enforcement of Amex’s class action ban “would effectively preclude any action seeking to vindicate the statutory rights asserted by the plaintiffs,” 554 F.3d 3000 (2d Cir. 2009) (“Amex I”), the U.S. Supreme Court decided Stolt-Nielsen v. AnimalFeeds Int’l, 130 S. Ct. 1758 (2010) and vacated and remanded Amex I for reconsideration.  The Second Circuit found its original analysis unaffected by Stolt Nielsen.  634 F.3d 187 (2d Cir. 2011) (“Amex II”).  After the Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the parties submitted additional briefing.  The court held in Amex III that Amex’s class action ban is still unenforceable and that Concepcion does not alter its analysis. 
• The court explained, “Concepcion did not address the issue of “whether a class-action arbitration waiver clause is enforceable even if the plaintiffs are able to demonstrate that the practical effect of enforcement would be to preclude their ability to vindicate their federal statutory rights.”  The court reasoned that because Concepcion had not addressed that question, it could not have overruled the Supreme Court’s prior holdings in Green Tree v. Randolph and Mitsubishi Motors, in which the Court had recognized an important limitation on the enforceability of arbitration clauses—that they must permit the parties to vindicate their statutory rights.  The court noted that, while “Concepcion plainly offers a path for analyzing whether a state contract law is preempted by the FAA,” “our holding rests squarely on a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability.”  While several courts have enforced class action bans, the Second Circuit explained, those holdings “speak to the quality of the evidence presented, not the viability of the legal theory.”  The court dismissed the antitrust law’s provisions on treble damage awards and fee shifting as insufficient to alleviate the risk to a plaintiff of bringing an individual action. 
• Finally, the court noted that because Stolt-Nielsen “precludes any court from compelling the parties to submit to class-wide arbitration where the arbitration clause is silent as to class-wide arbitration,” the plaintiffs must pursue their claims “as a judicial class action or not at all.   If they are not permitted to proceed in a judicial class action, then, they will have been effectively deprived of the protection of the federal anti-trust law.  The defendant will thus have immunized itself against all such antitrust liability by the expedient of including in its contract of adhesion an arbitration clause that does not permit class arbitration.”  Therefore, the court concluded that the arbitration clause was unenforceable.
  

2.  Anderson v. Apple American Group, LLC, No. 2010-0009375-CU-OE (Cal. Super. Ct.-Sacramento Aug. 16, 2011)

• Denies employer’s motion to compel individual arbitration of employee class members’ claims under California labor code.
• Concepcion does not preempt California Supreme Court’s decision in  Gentry v. Superior Court (Circuit City),165 P.3d 556 (Cal. 2007), and that the plaintiffs had “made a sufficient factual showing in support of the Gentry factors.”

3  Arellano v. T-Mobile USA, Inc., 2011 WL 1842712 (N.D. Cal. May 16, 2011)

• Enforces class action ban, but repeatedly notes that Concepcion’s preemption holding is the rule “at least for actions in federal court,” implying that Concepcion does not apply to cases in state court.

4.  Barkwell v. Sprint Communications Co., 2012 WL 112545 (M.D. Ga. Jan. 12, 2012)

• Denies Sprint’s motion to compel individual arbitration of breach-of-contract claims
• By waiting more than two years after removal of the case to federal court, engaging in discovery and motions practice, reaching a settlement in mediation, and generally acting inconsistently with a right to arbitration, Sprint waived its right to arbitrate.
• A motion to compel arbitration would not have been “clearly futile” prior to Concepcion.
  

5.  Brown v. Ralphs Grocery Co., No. B222689, 2011 WL 2685959 (Cal. Ct. App. July 12, 2011)

• Concepcion’s preemption holding does not apply to the public right to bring representative actions under California’ Private Attorney General Act of 2004 (PAGA).  The PAGA authorizes an aggrieved employee to act as a private attorney general to recover civil penalties against an employer for Labor Code violations.
• Plaintiff failed make the factual showing required by Gentry, supra, to invalidate class action waivers in an employment case.   The court therefore does not decide whether Gentry is preempted  by the FAA in light of Concepcion.
• Update:the U.S. Supreme Court denied certiorari on April 16, 2012.

6.  In re: Checking Account Overdraft Litig., 2011 WL 6225275 (S.D. Fla. Dec. 15, 2011)

• Defendants Wachovia and Wells Fargo waived right to arbitration. Under the futility doctrine, the defendant must show that “it is certain that their claim will be denied,” which was not the case here, as Concepcion was not the first case to consider whether a state-law challenge to the enforceability of an arbitration clause was preempted by the FAA.
  

7.  Chen-Oster v. Goldman, Sachs & Co., 2011 WL 2671813 (S.D.N.Y. July 7, 2011) 

• Denies defendants’ motion for reconsideration of April 28, 2011, order refusing to compel individual arbitration of plaintiffs’ Title VII claims.
• While the agreement was unambiguously silent on the subject of class arbitration, the plaintiff would be unable to vindicate a federal right to be free from a “pattern or practice” of discrimination without a class action.  
• Concepcion does not apply, because it addressed preemption of state law, not “whether the FAA’s objectives are also paramount when . . . rights created by a competing federal statute are infringed by an agreement to arbitrate.” 

8.   D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2011)

• The National Labor Relations Board held that it is an unfair labor practice for employers to completely bar their National Labor Relations Act (NLRA)-covered employees from bringing class, collective, or joint legal actions about wages or other terms and conditions of their employment. 
• The Board’s decision relied on decades of Board precedent that such group legal actions are protected concerted activity under section 7 of the NLRA. The Board also found strong support for its decision in the Norris-LaGuardia Act of 1932, which predates the NLRA.
• Update: D.R. Horton filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit on January 13, 2012.

9.  Feeney v. Dell Inc., 28 Mass. L. Rptr. 652 (Mass. Super. Ct. 2011)

• Denies Dell’s motion to compel individual arbitration of small consumer claims.
• Concepcion does not over-turn the Massachusetts’ high court’s decision in Feeney v. Dell, 454 Mass. 192 (2009) striking down a class action ban. 
• The court rejects some bases for distinguishing Concepcion (as well as law of the case and waiver arguments), but it nonetheless finds that Concepcion does not require overturning Feeney because, among other reasons, Dell’s arbitration clause did not have the special incentives in AT&T Mobility’s clause and Dell had conceded that unlike the plaintiff in Concepcion, the plaintiffs would be unlikely to pursue their claims without a class action.

10.  Hamby v. Power Toyota Irvine, No. 3:11-cv-00544-BTM-BGS (S.D. Ca. July 18, 2011)

• Granting plaintiff’s motion for permission to conduct discovery on the question of the enforceability of the defendant’s class action ban; holding that, while “Plaintiff can no longer rely on California’s Discover Bank rule to assert that the arbitration agreement is substantively unconscionable merely because it includes a class action waiver,” “[Concepcion] does not stand for the proposition that a party can never oppose arbitration on the ground that the arbitration clause is unconscionable.”

11. Herrington v. Waterstone Mortgage Corp., No. 11-cv-779 (W.D. Wis. Mar. 16, 2012)

• In putative FLSA class action, denies employer’s motion to compel individual arbitration
• Relying on decisions from federal courts and the NLRB, holds that a collective action lawsuit for unpaid wages is a “concerted activity for the purpose of mutual aid or protection” under the NLRA
• Relying on D.R. Horton, finds that class action ban violates NLRA because it prohibits employees from engaging in protected “concerted activity”
• Relying on Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1992), holds that, while NLRB has exclusive authority to provide remedies for unfair labor practices, a court may not enforce a contract provision that violates the NLRA
• Severs class action ban and grants motion to compel arbitration
  

12.  Hesse v. Sprint Spectrum, L.P., 2012 WL 37399 (W.D. Wash. Jan. 9, 2012)

• Grants plaintiffs’ motion for limited discovery on whether they will be able to effectively vindicate their rights in individual arbitration, although the judge expresses some doubts about the continuing viability of substantive unconscionability challenges to class action bans in arbitration clauses.
• Unfortunately, the court held that Sprint had not waived its right to arbitration, despite failing to raise the arbitration issue during five years of litigation that had culminated in class certification.

13.  Ho v. Ernst & Young, LLP, 2011 WL 4403625 (N.D. Cal. Sept. 20, 2011)

• Defendant waived its right to arbitrate where court finds it is “far from clear that a motion to compel arbitration at the outset of the litigation would have been futile.”
• Update:  The court denied E&Y’s motion for reconsideration on October 19, 2011.  2011 WL 4985047.

14.  Martinez v. Welk Group, Inc., 2012 WL 112535 (S.D. Cal. Jan. 12, 2012)

• Denies motion to compel arbitration on grounds that that, “by actively proceeding with litigation for two years while fully aware of these arbitration clauses, Defendants have waived their right to compel arbitration.”
  

15.  Natalani v. Import Motors, Inc. (San Mateo Super. Ct. June 30, 2011)         

• Order ruling denying defendant’s motion to compel arbitration on several grounds, including that “there is substantial doubt as to whether the holding of [Concepcion] applies to actions filed in state court,” relying on Arellano, infra.

16.  Plows v. Rockwell Collins, Inc., No. SACV 10-01936 (C.D. Cal. Aug. 9, 2011)

• Denying employer’s motion to compel individual arbitration of employee class members’ claims under California consumer protection and labor laws and PAGA.
• Holds that Gentry, supra, is valid law after Concepcion, but defers ruling on whether plaintiffs have met the Gentry test, ordering that the parties have four months to conduct discovery and develop an evidentiary record on the enforceability of the employer’s arbitration clause under Gentry.
• Holds that plaintiffs’ PAGA claims are not arbitrable because, pursuant to Brown v. Ralphs, infra, class action bans “may not be used to divest plaintiffs of their right to bring representative actions under PAGA.”

17.  Raniere v. Citigroup Inc., 11 CIV. 2448, 2011 WL 5881926 (S.D.N.Y. Nov. 22, 2011)

• Denies employer’s motion to compel individual arbitration of Fair Labor Standards Act (FLSA) claims.
• Concepcion does not apply to cases involving federal statutory rights.
• While “the collective waiver provision at issue here is not unenforceable on the basis that costs would prevent [plaintiffs] from vindicating their statutory rights in individual arbitration,” “a waiver of the right to proceed collectively under the FLSA is unenforceable as a matter of law.”

18.  Roberts v. El Cajon Motors, Inc., 200 Cal.App.4th 832 (Ct. App. 2011)

• Denies  car dealer’s motion to compel individual arbitration of consumer protection claims.
• Finds that the car dealer waived its right to arbitrate by engaging in conduct that was inconsistent with its intent to arbitrate—including engaging in discovery and waiting five months to move to compel arbitration—and that this conduct prejudiced the consumers.
• The car dealer also had identified the potential class members and mailed them $50 checks purporting to settle all claims, and the court found that this conduct also prejudiced the putative class members.

19.  Sutherland v. Ernst & Young LLP, 768 F. Supp. 2d 547 (S.D.N.Y. 2011), reconsideration denied, 2012 WL 130420 (S.D.N.Y. Jan. 17, 2012)

• Denies employer’s motion to compel individual arbitration of FLSA and state labor law claims.
• Relying on In re American Express Merchants’ Litigation, 554 F.3d 300 (2d Cir.2009), the court finds that the plaintiff has demonstrated that “it would be prohibitively expensive for her to pursue her statutory claims on an individual basis” and that she would be unable to find legal counsel to represent her in individual arbitration.
• The court further reasons that if the plaintiff cannot participate in a class proceeding, “S[s]he will be unable to pursue her claims, even if they are meritorious. As a result, E & Y would enjoy de facto immunity from liability for alleged violations of the labor laws,” which would be contrary to Congressional intent.

20.  Teimouri v. Macy’s Inc., No. 37-2010-00093577-CU-OE-CTL (Cal. Super. Ct.-San Diego Aug. 19, 2011)

• Denies defendant’s motion to compel arbitration of plaintiffs’ claims under California’s PAGA.  Follows Brown v. Ralphs, holding that Concepcion’s FAA preemption ruling does not apply to Gentry, supra. 
• Holds that plaintiffs met their burden of submitting sufficient evidence to demonstrate that the defendant’s class action ban is unenforceable under Gentry.

21.  Torrence v. Nationwide Budget Finance, No. 05-CVS-0047, 2012 WL 335947 (N.C. Super. Ct. Jan. 25, 2012)

• Class action ban unenforceable where “payday borrowers would not be able to effectively vindicate the type of claims raised by plaintiffs here, even if the claims are legally justified and correct, if [they] are required to proceed on an individual rather than class basis.” 
• The court based this conclusion on an evidentiary hearing and extensive factual record proving that: (1) payday borrowers are unable to secure legal representation to bring individual cases; (2) because of the legal and factual complexity of the claims, borrowers could not represent themselves pro se and would likely “be unaware that they possessed any sound basis for a legal claim;” and (4)“[n]o individual arbitration cases have ever been brought challenging payday lending in North Carolina, either against the defendants in this case or against any other payday lenders.” 
• The court reasoned that Concepcion did not address cases where the plaintiffs prove they could not effectively vindicate their statutory rights individually, and stated that Concepcion “is limited to overturning the ‘Discover Bank rule,’ which was a rule of automatic invalidation, in a case in which the plaintiff would be able to effectively vindicate his rights in arbitration.”  The court explained that North Carolina law, by contrast, “involves consideration of all facts and circumstances,” and that the plaintiffs in Torrence, unlike the Concepcion plaintiffs, “would not be able to effectively vindicate their rights in NAF arbitration.”  

22.  In re: Toyota Motor Corp. Hybrid Brake Marketing, Sales, Practices, and Products Liability Litig., 2011 WL 6189467 (C.D. Cal. 2011)

• The court held that Toyota waived its right to compel arbitration by acting inconsistently with that right when it “vigorously litigated this action for nearly two years, engaged in extensive discovery . . ., filed motions with this court, and negotiated and sought protective orders. 
• The court further held that Concepcion did not excuse Toyota’s conduct, because the company continued to litigate for 6 months following the U.S. Supreme Court’s decision, including serving notices of deposition, and   In addition, the plaintiffs had “expended substantial resources, time, and effort in litigating this action,” and would be prejudiced if the case was now sent to arbitration. 
• The court emphasized that “contrary to Toyota’s suggestion, it does not have a right to reset the clock for arbitration base on changing subsequent law, as no party has a right to unfairly play a game of ‘wait and see’ and not assert its legal rights until and unless the law becomes more favorable to its position.”

23.  Vasquez v. Cal. School of Culinary Arts, No. BC393129 (Cal. Super. Ct. Nov. 21, 2011)

• Defendant waived its right to invoke an arbitration clause. 
• The defendant litigated for three years, engaging in extensive motions practice and discovery, and then after Concepcion suddenly moved to compel arbitration . The court held that the evidence of prejudicial delay is overwhelming, and with no justifiable reason.  The opinion recites numerous facts showing how extensive the litigation had been.
• The court held that Concepcion is not applicable because the arbitration clause at issue does not ban class actions.
  

24.  Williams v. Securitas Security Services USA, Inc., No. 10-7181, 2011 WL 2713741 (E.D. Pa. July 13, 2011) (unpublished)

• Order for defendant to rescind the contractual class, collective, and representative action waiver it distributed to all its employees after a collective action asserting violations of the Fair Labor Standards Act (FLSA) in Pennsylvania had already been filed.   The court cited its duty under Hoffman-LaRouche, Inc. v. Sperling, 493 U.S. 165 (1989), to prevent confusion among and unfair communications with employees during the pendency of an FLSA action and found Concepcion’s preemption analysis to be inapposite.  The court requires the defendant to advise its employees that the waiver is not binding with regard to their ability to participate in the case at bar, even if they signed the waiver or failed to opt out of its terms. 

Educational resources on Concepcion

• American Bar Association program:  In the In the Wake of AT&T Mobility v. Concepcion: Perspectives on the Future of Class Litigation (6/21/2011).  This program featured Public Justice Staff Attorney Leslie Bailey, Archis Parasharami of Mayer Brown (counsel for AT&T Mobility), and Dean Harvey of Lieff, Cabraser, Heimann & Bernstein, LLP.

Briefs addressing Concepcion   

Vindication of statutory rights – state.   Briefs arguing that the FAA does not preempt state-law challenges to class action bans where a robust factual record shows that the plaintiffs would be unable to vindicate their state statutory rights individually.

Kilgore v. KeyBank (9th Cir.) – The Sturdevant Law Firm; Public Justice; and Pinnacle Law Group

• Petition for Rehearing En Banc (Mar. 21, 2012).  This petition argues that the panel’s decision overturning prior Ninth Circuit precedent, finding the Broughton/Cruz doctrine preempted by Concepcion, and erecting a rule that the “vindication of substantive statutory rights” doctrine applies only to federal statutory claim should be reversed.  The core argument in this petition is that the panel over-read Concepcion as abrogating a longstanding series of Supreme Court cases that preserves a court’s power to ensure that the use of an arbitration agreement does not preclude a litigant’s ability to effectively vindicate their statutory rights, and that its conclusion that Concepcion overruled earlier Ninth Circuit precedent was erroneous. 
  
• Amicus brief filed by Arbitration Law Professors (Mar. 27, 2012).  This amicus brief filed on behalf of eight law professors in support of rehearing en banc argues explains why the panel’s expansive reading of Concepcion was unjustified and demonstrates that Concepcion does not impact the Ninth Circuit’s earlier caselaw.  It also discusses why the panel’s decision, if left to stand, will have a deeply problematic impact on the future of FAA preemption.
  
• Amicus brief filed by the National Employment Lawyers Association, the Employee Rights Advocacy Institute for Law & Policy, and California Employment Lawyers Association (Apr. 2, 2012).  This amicus brief filed on behalf of employment groups explains why the panel’s decision would result in a serious and unwarranted deprivation of statutory rights for employees who have been wronged under a host of statutory protections.

Homa v. American Express Co. (3d Cir.) – Public Justice; Stull, Stull & Brody; Kantrowitz, Goldhamer & Graifman, P.C. 

     Appellants’ Reply Brief, 3/5/2012

• FAA § 2 gives courts the power to invalidate an arbitration provision where that provision is proven to preclude a party from effectively vindicating his statutory rights.  To hold that arbitration clauses must be enforced even where that would eliminate statutory rights would read a core principle out of the FAA jurisprudence and turn the central promise of the FAA – that arbitration be a credible and legitimate alternative dispute resolution mechanism – on its head.

     Appellants’ Opening Brief, 12/12/2011

• Concepcion did not overrule the New Jersey Supreme Court’s decision in Muhammad v. County Bank of Rehobeth Beach or the Third Circuit’s decision in Homa v. American Express Co., because New Jersey law, unlike the Discover Bank rule, requires a fact-intensive and nuanced approach to evaluating whether a class action ban would prevent the plaintiffs in a particular case from effectively vindicating their rights.

Coneff v. AT&T Wireless (9th Cir.) -- Public Justice, Consumer Watchdog, Stritmatter Kessler Whelan Coluccio, Pearson Simon Warshaw Penny LLP
         Supplemental Reply, Dec. 15, 2011     
         Supplemental Brief on Concepcion and Schnall, Dec. 1, 2011

• Plaintiffs argue that the district court’s decision striking down AT&T’s class action ban as unconscionable should be affirmed notwithstanding the U.S. Supreme Court’s decision in Concepcion, because Concepcion left intact the rule that arbitration clauses cannot be used to strip individuals of their statutory rights.  Plaintiffs further argue that the district court’s decision applying Washington law should be affirmed notwithstanding the Washington Supreme Court’s decision in Schnall v. AT&T, which did not involve the question of whether enforcing a class action ban would deprive consumers of their rights.

Felts v. CLK Management, Inc. (New Mexico Supreme Court, No. 33,013) – Public Justice, Rob Treinen, Douglas Micko, and Richard Fuller

     Answer Brief in Response to CANI’s Brief in Chief, Sept. 30, 2011

• In this Answer Brief to one of the payday lender defendants in this case, Felts argues that the issue of whether the defendant’s arbitration clause is unenforceable was properly decided by the court—not the arbitrator—because there was no clear and unmistakable evidence that Felts agreed to have the arbitrator decide this issue.  The language identified by the defendant that purportedly delegated this issue to the arbitrator is also unenforceable for the additional reasons that: (1) it is unconscionable; and (2) it has been rendered impossible of performance because it named the National Arbitration Forum as the sole arbitrator to decide this dispute, but this arbitrator no longer arbitrates consumer disputes.  This Brief also argues that the court below properly struck the arbitration clause in its entirety, rather than just striking the class action ban and enforcing the remainder of the clause.  Finally, this Brief incorporates arguments fleshed out in greater detail in Felts’ Answer Brief in Response to CLK’s Opening Brief (see below) regarding Concepcion and whether Felts would be able to effectively vindicate her statutory rights in this case absent the class action mechanism.  

     Answer Brief in Response to CLK’s Opening Brief, Sept. 30, 2011

• In this Answer Brief to another one of the payday lender defendants in this case, Felts argues that Concepcion does not bar New Mexico courts from striking down class action bans in cases where plaintiffs can demonstrate that the class action mechanism is essential to vindicate their statutory rights.  Felts argued that Concepcion does not disturb the U.S. Supreme Court’s repeated holdings that parties must be able to effectively vindicate their rights in arbitration for arbitration clauses to be held enforceable, and that Felts here demonstrated through admissible evidence that enforcing the ban in this case would, in fact, effectively prevent her from vindicating her rights under New Mexico law.  This Brief also explains that New Mexico law is not preempted by the Federal Arbitration Act because it does not impose class-wide arbitration without the consent of the parties, and also that Concepcion’s holding does not apply to cases in state court.  Finally, this Brief incorporates arguments fleshed out in greater detail in Felts’ Answer Brief in Response to CANI’s Brief in Chief (see above) regarding the issue of whether the court or the arbitrator should have decided the issue of enforceability of the arbitration clause.

McKenzie Check Advance of Florida v. Betts (Supreme Court of Florida, No. SC11-514) -- Public Justice, and Ted Leopold, Diana Martin, Chris Casper, Clay Yates, and Richard Fisher
     Answer Brief, Sept. 12, 2011

• Concepcion does not overrule the appellate court’s holding that a payday lender’s class action ban is unenforceable as contrary to Florida public policy.  This brief explains that Concepcion does not apply in cases (such as this) where the evidentiary record demonstrates as a matter of fact that plaintiffs would be unable to vindicate their statutory rights on an individual basis in arbitration.  This brief also demonstrates that Florida law is distinguishable from California’s Discover Bank rule, as that rule was interpreted by the U.S. Supreme Court, so the Court’s concern that the Discover Bank rule would frustrate the purposes of the Federal Arbitration Act should not compel the same concern under Florida law.  Finally, this brief explains that the appellate court’s holding below should be affirmed because the defendant payday lender’s class action ban violates Florida public policy and is unconscionable.   

Vindication of statutory rights – federal. Briefs arguing that the FAA does not require enforcement of class action ban that would prevent plaintiffs from vindicating their federal statutory rights.

In re American Express Merchants Litig. (2d Circuit) - Friedman Law Group LLP           
     Plaintiffs’ Letter Brief on Concepcion, 6/3/2011         

• Concepcion’s preemption holding does not apply where class action ban conflicts with federal statute

Conflict with federal law .  Briefs arguing that imposing a class action ban is a per se violation of federal law.

D.R. Horton (National Labor Relations Board, Case No. 12-CA-25764)
     Amici Brief of Public Interest Organizations, July 27, 2011 -- Frank Freed Subit & Thomas LLP, Public Justice, and NELA

• A workplace ban on joint, class, or collective actions prohibits interferes with employees’ rights to engage in concerted activity pursuant to section 7 of the National Labor Relations Act (“NLRA”), and is an unfair labor practice under section 8(a)(1) of the NLRA.
• The fact that the class action ban is contained in an arbitration agreement does not save it from invalidity under the NLRA.  Concepcion did not overrule clear U.S. Supreme Court precedent that allows plaintiffs to resist terms in arbitration clauses on the ground that they interfere with the effective vindication of substantive rights.

     Amici Brief of the U.S. Secretary of Labor (“DOL”) and the Equal Employment Opportunity Commission (“EEOC”), July 27, 2011

• Class and collective actions are critical to the enforcement of the employment laws administered by the DOL and EEOC.
• When an employee cannot effectively vindicate his or her federal statutory rights without using a class or collective action, a class action waiver in a mandatory arbitration agreement is impermissible as a matter of federal law.
• This position is consistent with Concepcion.

Waiver.  Briefs arguing that defendant has waived right to arbitration, notwithstanding Concepcion.

Cardenas v. AmeriCredit Fin. Servs., Inc.  (9th Cir.) – Public Justice
     Opposition to Motion for Summary Reversal, 6/2/2011

• Defendant waived FAA preemption argument 
• FAA does not preempt rule that claims for public injunction under California’s UCL cannot be arbitrated 

Chassen v. Fidelity Nat’l Financial, Inc.   (D.N.J.) – Williams Cuker Berezofsky, LLC
     Plaintiffs’ Memorandum of Law in Support of Motion to Certify Order for Interlocutory Appeal, 1/24/2012

• Given state’s case-by-case approach to analyzing validity of class action bans, defendant’s futility argument fails.  

Schnuerle v. Insight Communications Co.   (Kentucky Supreme Court) – Public Justice

     Appellants’ Supplemental Authority Brief, November 16, 2011

• The doctrines of judicial estoppel and waiver bar the defendant from arguing that its class action ban is enforceable under Concepcion because the defendant has consistently taken the position that state law—not federal law—governed the enforceability of its class action ban.
• Concepcion does not mandate that the defendant’s class action ban be held enforceable in this case because Concepcion must be read with other U.S. Supreme Court cases holding that plaintiffs must be able to vindicate their rights in arbitration, and the evidentiary record in this case demonstrates that enforcing the defendant’s ban would effectively prevent these plaintiffs from effectively vindicating their rights in arbitration.  Such an evidence-based approach to determining whether a class action ban is enforceable is entirely consistent with Concepcion and U.S. Supreme Court jurisprudence.  
• Urging Supreme Court of Kentucky to clarify that, under Kentucky law: (1) class action bans in arbitration clauses are enforceable except where a party demonstrates through admissible evidence that the ban would prevent plaintiffs from effectively vindicating their statutory rights; and (2) if a class action ban is invalidated, no party will be required to participate in a class arbitration unless it agrees to do so.    

Vernon v. Qwest Communications International, Inc. (D. Colo.) – Terrell Marshall Daudt & Willie PLLC; Dyer & Berens LLP; and Sprenger & Lang, PLLC
     Plaintiffs’ Response to Defendants’ Motion to Compel Arbitration, 6/15/2011

• Concepcion does not require enforcement of class action ban where evidence proves plaintiffs could not vindicate their statutory rights individually
• Colorado law is consistent with the FAA 

- Decl. of Beth E. Terrell in Supp. of Plaintiffs’ Response to Defendants’ Mot. to Compel Arbitration Beth Terrell, 2/19/2010
- Affidavit of Peter Maier in Support of Plaintiff's Opposition to Defendants' Motion to Compel Arbitration, 2/19/2010
- Affidavit of Richard Fuller in Support of Plaintiff's Opposition to Defendants' Motion to Compel Arbitration, 2/19/2010

Witness Affidavits

1. Homa v. American Express Co. (3d Cir.) – Public Justice; Stull, Stull & Brody; Kantrowitz, Goldhamer & Graifman, P.C. 

     Decl. of G.R. Homa in Sup. of His Opp. to Defendant’s Mot. to Reinstate This Court’s May 31, 2077 Order Compelling Arbitration, 6/26/2011

     Decl. of Gary S. Graifman in Opp. to Renewed Mot. to Compel Arbitration (and Exhibits 1 & 2), 6/27/2011

     Graifman Decl. Exhibits 3 through 12, 6/27/2011

     Decl. of Matthew Wessler in Supp. of Plaintiff’s Opp. to Defendants’ Mot. to Reinstate This Court’s May 31, 2007 Order Compelling Arbitration, 6/27/2011

2.  Coneff v. AT&T  (W.D. Wash.)  – Public Justice     
     Jerome Hartzell, 3/10/2008  
     Daniel Blinn, 3/7/2008

Discovery 
                                                     
1.  In Re: Checking Account Overdraft Litig. (S.D. Fla.) – Grossman Roth, P.A. 
     Plaintiffs’ Motion to Defer Ruling on Defendant’sMotion to Compel Arbitration pending completion of arbitration-related discovery, 5/19/2011  
     Plaintiffs’ Interrogatories (Exhibit B to to Plaintiffs' Response in Opposition to the Arbitration Motion), 5/19/2011
     Plaintiffs’ Request for Production of Documents (Exhibit C to Plaintiffs' Response in Opposition to the Arbitration Motion), 5/19/2011

2.  Coneff v. AT&T (W.D. Wash) – Public Justice
     Plaintiffs’ Request for Additional Discovery, 11/10/2006
          Exhibit 1:  Plaintiffs’ Requests for Admission
          Exhibit 2:  Plaintiffs’ Interrogatories
          Exhibit 3:  Plaintiffs’ Request for Production of Documents