Review of Securities & Commodities Regulation Publishes Akin Gump Article on Arbitration Agreements and Class Actions

“The Effect of Arbitration Agreements on Class Actions,” an article by Akin Gump appellate practice head Rex Heinke and litigation practice counsel Julia De Beers and associate Elias Dabaie, has been published by The Review of Securities & Commodities Regulation.

The authors discuss a series of recent decisions by the U.S. Supreme Court that involved the concept, based in the Federal Arbitration Act (FAA), of “rigorously enforcing” arbitration agreements in strict accordance with their terms.

As the authors note, “Courts were reluctant to enforce arbitration agreements that prohibited class actions in arbitrations. However, in a series of recent decisions, the United States Supreme Court has made it increasingly difficult for parties to invalidate class action waivers in arbitration agreements.”

They examine decisions in AT&T Mobility v. Concepcion, American Express v. Italian Colors Restaurant, CompuCredit v. Greenwood, Green Tree Financial Corp. v. Bazzle, among others, to trace the Court’s path through these decisions.  In doing so, the authors analyze and discuss topics such as the enforceability of class action waivers in arbitration agreements despite contrary state law, the primacy of the FAA over federal law unless Congress has expressed a contrary intent, and the appropriate standard to determine whether an agreement permits class arbitration.

In conclusion, they offer readers the following advice:

“While not all of the issues have been settled, it is clear that the Court is making it increasingly difficult for parties to invalidate class action waivers in such agreements. To ensure ironclad enforcement, contracting parties should clearly express their intent with unequivocal language as to whether class arbitration is permitted and whether a court or arbitrator is to decide that issue.”

To read the full article, please click here.