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Class arbitration and unconscionability

In Cottonwood Fin. Ltd., v. Estes, 2010 WI App75, 325 Wis.2d 749, 784 N.W.2d 726, the Wisconsin Court of Appeals held that an arbitration provision that included a class action waiver. An appeal is in abeyance awaiting the decision in the similar U.S. Supreme Court case of AT&T Mobility, LLC v. Concepcion, No. 09-893.

I'm quoted in a Wisconsin Law Journal news story on the Wisconsin case:

"If a company creates an alternative dispute mechanism that provides compensation, and is quicker and better than class actions, where is the unconscionability?" he said. According to Frank, courts in California and Wisconsin, by concluding that the lack of class actions as a remedy is unconscionable, have treated the right to file a class action as an end in and of itself rather than a means, "allowing the procedural tail to wag the substantive dog."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.