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Upon Reading Concepcion While Dukes Gestates

April 27, 2011 7:46 PM

Today the Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, No. 09-893 (U.S. Apr. 27, 2011).  At first glance, it doesn't seem that Concepcion -- which addressed whether California could use its "unconscionability" precedents to invalidate any consumer arbitration contract that included a class action waiver -- would have much to do with the issues in Dukes, which concerns whether a massive employment discrimination class action should have been certified.

And yet, in Concepcion, a five-Justice majority based its decision, in part, on just how difficult it is to create and adhere to procedures that achieve fundamental fairness in class adjudications.  The Court was expressly concerned with the due process rights of absent class members who would be bound to the decision in a class arbitration.  It mentioned the importance of opt-out rights where money damages were involved.  The Court also was worried about how to manageably conduct class discovery.  And it was concerned about the rights of defendants.

I'll confess, Jeff, that when I sat down to write my prior post, it initially felt like I was (once again) asking Santa for all of the things that my teacher-parents couldn't afford.  But as I thought more about it, many of the things on that list really are necessary to reaching the result that I think the majority will reach, which is reversal.  For example, I think they have to genuflect to the "rigorous scrutiny" standard.  And while they may not go so far as requiring plaintiffs to propound a trial plan in every case, even you and Andrew believe the focus will be on how the case would be tried.

Similarly, the notion that a (b)(2) class isn't a way around the predominance and superiority requirements of (b)(3) is something that it seems the Court has to espouse, even though it may not say money is never, ever recoverable in a (b)(2) class.

I'll admit that I'm both pleased and excited to see the mentions in Concepcion of adequacy of representation and the need for opt-out rights where money is involved.  This confirms to me that these issues are still at the forefront of the Court's mind.  And I liked Justice Scalia's statement that switching from an individual claim to a class claim sacrifices informality and is "more likely to generate procedural morass than final judgment."  Slip op. at 14.  This sounds like someone who understands the manageability problems associated with class adjudication.

I'll confess that where, as here, the case was well-argued by the defense, I'm prone to see the glass as half full.  Heck, I was even a member of the Optimist Club in my Missouri hometown.  But I wonder, Jeff, if reading Concepcion gives you even a little more hope that Dukes will be a broader, more instructive opinion?

(Lest you think I've totally drunk the Kool-Aid, I'd be happy to kvetch with you over drinks -- but not here -- about Concepcion's place in the Supreme Court's topsy-turvy preemption jurisprudence.)





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Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
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Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004

Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.