Nearly one year after the U.S. Supreme Court’s April 27, 2011 decision in Concepcion v. AT&T Mobility, 131 S. Ct. 1740 (2011), state and federal courts alike have issued rulings that disprove widespread predictions that Concepcion would sound the death knell for class actions by referring the bulk of them to arbitration. In Brown v. Ralphs, 197 Cal. App. 4th 489 (2011), California’s Court of Appeal categorically excluded actions brought pursuant to PAGA (the Private Attorneys General Act) from Concepcion’s ambit, while the Ninth Circuit recently upheld the continuing vitality of the unconscionability doctrine in Kilgore v. KeyBank, No. 3:08-cv-02958 (9th Cir. Mar. 7, 2012) and Coneff v. AT&T Corp., No. 2:06-cv-00944 (9th Cir. Mar. 16, 2012).
Rulings limiting Concepcion have by no means been confined to California. For instance, the influential Second Circuit recently held that enforcement of a class action ban “would strip the plaintiffs of rights accorded them by statute.” Italian Colors Rest. v. Am. Express Travel Related Servs. Co., 667 F.3d 204, 219 (2nd Cir. 2012). The panel remanded the at-issue action to the district court with instructions to deny the defendant’s motion to compel arbitration. Id. at 219-220. In Massachusetts, a state court found that Concepcion did not overturn a Massachusetts Supreme Judicial Court ruling that invalidated bans on class actions. Feeney v. Dell, 28 Mass. L. Rptr. 652 (Mass. Super. Ct. 2011). And in North Carolina, a class action ban was held unenforceable where the underlying claims could not be effectively remedied “if [prospective class members] are required to proceed on an individual rather than class basis.” Torrence v. Nationwide Budget Finance, No. 05-CVS-0047, 2012 WL 335947 (N.C. Super. Ct. Jan. 25, 2012). Federal district courts issued similarly framed Concepcion interpretations. See, e.g., Raniere v. Citigroup, No. 11-civ-2448, 2011 U.S. Dist. LEXIS 135393 (S.D.N.Y. Nov. 22, 2011) (denying employer’s motion to compel individual arbitration); Barkwell v. Sprint Communications Co., No. 4:09-CV-56, 2012 U.S. Dist. LEXIS 3625 (M.D. Ga. Jan. 12, 2012) (denying motion to compel individual arbitration of breach of contract claims).
In retrospect, the more measured predictions about Concepcion’s impact have proven the most prescient. As is so often the case in matters of complex, impact litigation, Concepcion appears to be neither the “end of class actions” nor “much ado about nothing.” Rather, Concepcion has triggered a common law articulation that is far more evolutionary than revolutionary.