Coneff v. AT&T: Recognizing the “Continued Vitality” of the Procedural Unconscionability Doctrine Post-Concepcion

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The Ninth Circuit has interpreted the U.S. Supreme Court’s decision in Concepcion as recognizing the “continued vitality” of the procedural unconscionability doctrine.  Coneff v. AT&T Corp., No. 2:06-cv-00944, 3151 (9th Cir. Mar. 16, 2012) (citing Concepcion v. AT&T Mobility, 131 S. Ct. 1740, 1747 (2011)) (available here).  The panel remanded Coneff to the district court for an evaluation of the procedural unconscionability of the at-issue arbitration clause and class action waiver.  Id. at 3151-3153.

The opinion, authored by Judge Susan P. Graber, held that Concepcion precludes a finding of substantive unconscionability, but leaves open the possibility of a finding of procedural unconscionability.  Id. at 3146-3151.  Accordingly, on remand, the district court was instructed to apply the State of Washington’s choice of law rules and determine whether the arbitration clause and class action waiver are procedurally unconscionable.  Id. at 1351-53.

Together with its recent decision in Kilgore v. KeyBank, No. 3:08-cv-02958 (9th Cir. Mar. 7, 2012), the Ninth Circuit has unmistakably confirmed that Concepcion has not nullified the unconscionability analysis.