# Supreme Court ends Class Action lawsuits \[AT&T Mobility LLC v. Concepcion\] **URL:** \ **Category:** Great Debates\ **Created:** [April 27, 2011, 9:34pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953 "2011-04-27T21:34:19Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2011, 12:43pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/41 "2011-04-28T12:43:17Z")
> [@Whack-a-Mole](#): > > Apparently five justices feel as you do. Four feel as I do. You win this round. I can only hope not much damage is done till, hopefully, we get this changed someday. I’m not sure I agree. I am absolutely certain that all nine justices agree that Congress has the power to legislate in this area, and that the issue is whether a federal law comes into conflict with a state law, and that the Fourteenth Amendment is not involved, and that the Supremacy Clause is involved. So all nine justices woiuld agree that Congress could fix this problem. Four justices believed that California’s law didn’t conflict with the federal law. Five said it did. You seem to believe that the judicial branch should simply fix a wrongness, because Congress’ decision-making is corrupted to some extent. There’s no evidence that four, or indeed any, justices believed that. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 28, 2011, 1:14pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/42 "2011-04-28T13:14:24Z")
> [@Bricker](#): > > I’m not sure I agree. I am absolutely certain that all nine justices agree that Congress has the power to legislate in this area, and that the issue is whether a federal law comes into conflict with a state law, and that the Fourteenth Amendment is not involved, and that the Supremacy Clause is involved. > > So all nine justices woiuld agree that Congress could fix this problem. > > Four justices believed that California’s law didn’t conflict with the federal law. Five said it did. > > You seem to believe that the judicial branch should simply fix a wrongness, because Congress’ decision-making is corrupted to some extent. There’s no evidence that four, or indeed any, justices believed that. Which is it? > [@Bricker](#): > > Yes, and although I hate to muddy water which is only now getting clear, I will say that the case for the FAA vs the CA Discover rule being preemption is much clearer than for SB1070 vs the Immigration Act. > > The reason is that with California, the two provisions directly contradict one another. So, four justices cannot see what you and the other five justices see clearly? ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [April 28, 2011, 1:21pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/43 "2011-04-28T13:21:56Z")
FYI, Senators Franken, Blumenthal, and Johnson are planning to introduce a bill that would eliminate forced arbitration clauses. [Link](http://blumenthal.senate.gov/press/release/index.cfm?id=0C87CC34-F6B8-4FDF-A93C-0DF05399E729) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 28, 2011, 1:26pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/44 "2011-04-28T13:26:51Z")
> [@gonzomax](#): > > You got something. Without the class action you would have got nothing. But in many cases the lawyers make out for millions. That is what should be addressed. Without class action, corporations can fleece their customers with very little fear. The lawyers make out for millions because they spend thousands of hours prosecuting the cases. Class action suits take years just to reach settlement. Apart from anything else, it can take years just to establish whether the case should even be certified as a class action. For example, [a bunch of female Wal-Mart employees are currently suing for discrimination](http://www.upi.com/Top_News/US/2011/03/29/Walmart-class-action-could-be-derailed/UPI-94601301420884/). The issue of whether to certify the class (which includes somewhere between 1 and 1.5 million women) has been litigated for _10 years_, and the Supreme Court heard argument on it earlier this year. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2011, 3:08pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/45 "2011-04-28T15:08:19Z")
> [@Whack-a-Mole](#): > > Which is it? > > So, four justices cannot see what you and the other five justices see clearly? Not exactly. It would help, **Whack-a-Mole** , if you actually understood any of the issues under discussion. Do you get the difference between express and implied preemption, and specifcally between implied field preemption and implied conflict preemption? (I’m not asking if you ran to look those phrases up and then answered ‘yes’ – I’m asking if, when you posted your last message, you nderstood those distinctions). California’s “Discover Rule” is subject matter that is directly addressed by the FAA. The four dissenting justices believed they could harmonize the two provisions; the five majority justices said they could not. While I agree with the five, I allow that it’s an arguable point. The Arizona law does not address subject matter directly covered by the Immigration Act. It covers illegal immigrants, yes, but you can’t point to any provision of the Immigration Act and say that the Arizona law contradicts it. This is why I said I hated to muddy the water. Federal preemption is not a simple area, and in making a broad point a little more accurate, I have added a layer of confusion. The claim that the provisions directly contradict each other is the decision of the court. It’s a close question on which reasonable people may disagree. No justice, I’m sure, believes that federal preemption is not in play. Becuase Arizona’s law doesn’t interact the same way with the Immigration Act, the entire question of federal preemption is a closer question. “When the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’” _Bates v. Dow Agrosciences LLC_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2011, 3:18pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/46 "2011-04-28T15:18:05Z")
> [@MOIDALIZE](#): > > FYI, Senators Franken, Blumenthal, and Johnson are planning to introduce a bill that would eliminate forced arbitration clauses. > > [Link](http://blumenthal.senate.gov/press/release/index.cfm?id=0C87CC34-F6B8-4FDF-A93C-0DF05399E729) A bit broader remedy than I would have imposed, but perfectly within Congress’ powers. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 28, 2011, 4:55pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/47 "2011-04-28T16:55:14Z")
I have a question regarding Contracts of Adhesion. I’m wondering if it works both ways. Hypothetically, I’m at the AT&T store buying a cell phone with two year commitment, ect. There is a 20-something selling me the phone. I take the contract, flip to the arbitration clause, cross it out, initial/date the cross out, and then sign and date the contract as usual. The sales person doesn’t comprehend or care or notice what I did. The contract is signed and the phone paid for. I leave. Is that arbitration clause still part of the AT&T contract now? I understand AT&T didn’t agree to the change (hence why I ask it Contracts of Adhesion works both ways), but do they consent to it by completing the transaction and selling me the phone. Or does a contract of adhesion mean I am not _allowed_ to change it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2011, 5:23pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/48 "2011-04-28T17:23:43Z")
> [@CoolHandCox](#): > > I have a question regarding Contracts of Adhesion. I’m wondering if it works both ways. Hypothetically, I’m at the AT&T store buying a cell phone with two year commitment, ect. There is a 20-something selling me the phone. I take the contract, flip to the arbitration clause, cross it out, initial/date the cross out, and then sign and date the contract as usual. The sales person doesn’t comprehend or care or notice what I did. The contract is signed and the phone paid for. I leave. > > Is that arbitration clause still part of the AT&T contract now? I understand AT&T didn’t agree to the change (hence why I ask it Contracts of Adhesion works both ways), but do they consent to it by completing the transaction and selling me the phone. Or does a contract of adhesion mean I am not _allowed_ to change it. I would expect that your change would not be considered part of the contract – in other words, that would be ineffective in removing the arbitration clause. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [April 28, 2011, 5:30pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/49 "2011-04-28T17:30:53Z")
> [@Bricker](#): > > I would expect that your change would not be considered part of the contract – in other words, that would be ineffective in removing the arbitration clause. I’m not so sure. There’s a matter of agency, of course, as to whether the salesperson can accept the counteroffer. But there’s no doubting that there was a counteroffer. Further, since a counteroffer ends the pendency of an offer, you can’t say that the original offer was accepted by post-counteroffer use of the services. On the model of the UCC’s knockout rule (which I know does not apply here, but can provide some guidance nevertheless), I’d say the arb clause is out, the remaining terms, which did not vary from offer to counteroffer, are in. The common law approach would be that no contract was formed, no? ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [April 28, 2011, 5:36pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/50 "2011-04-28T17:36:51Z")
WAG, but I would think that since the clear intent and expectation of the business is to offer a take-it-or-leave-it type of deal, then a surreptitious crossing-out of a contract term would, if anything, result in no contract at all. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 28, 2011, 5:42pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/51 "2011-04-28T17:42:50Z")
> [@Bricker](#): > > Not exactly. > > It would help, **Whack-a-Mole** , if you actually understood any of the issues under discussion. Actually in this case no, I do not need to. You accused me of wanting the court to right a wrongness. I pointed out that four justices (and lower courts) felt the CA law was ok. Obviously five justices disagreed and carried the day. The difference is, while I do not think the court should be philosopher kings proclaiming anything they feel like, I feel outcomes are more important than your hidebound adherence to the letter of the law no matter the outcome. If several justices could see their way to harmonize the two laws I presume they had good legal reasoning to do so. You may feel the reasoning against it was better. Fine. However, your road is a scary one and one that denies me rights (the right to band together with others to stop a company from committing some fraud). If the court had harmonized the law and Congress wanted to be more clear on this point then Congress could have re-written the law to reflect that. Works both ways. ---
**Author:** ![mozchron](https://avatars.discourse-cdn.com/v4/letter/m/c2a13f/32.png) [@mozchron](https://boards.straightdope.com/u/mozchron)\ **Post date:** [April 28, 2011, 5:47pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/52 "2011-04-28T17:47:45Z")
Forgive me if this has been answered - I stopped reading the histrionics in this thread a while ago. If the contract specifies arbitration, do they generally specify _individual_ arbitration? Is there any reason why arbitration can’t be done as a class action? Legal answers only please ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [April 28, 2011, 5:57pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/53 "2011-04-28T17:57:03Z")
> [@mozchron](#): > > Forgive me if this has been answered - I stopped reading the histrionics in this thread a while ago. > > If the contract specifies arbitration, do they generally specify _individual_ arbitration? Is there any reason why arbitration can’t be done as a class action? > > Legal answers only please Yes, the contract forbade dissatisfied customers from proceeding as a class. From the Supreme Court opinion: > [@](#): > > In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LCC (AT&T). The contract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” ---
**Author:** ![The\_Lurker\_Above](https://avatars.discourse-cdn.com/v4/letter/t/dc4da7/32.png) [@The\_Lurker\_Above](https://boards.straightdope.com/u/The_Lurker_Above)\ **Post date:** [April 28, 2011, 5:58pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/54 "2011-04-28T17:58:39Z")
> [@Kimmy\_Gibbler](#): > > I’m not so sure. There’s a matter of agency, of course, as to whether the salesperson can accept the counteroffer. But there’s no doubting that there was a counteroffer. Further, since a counteroffer ends the pendency of an offer, you can’t say that the original offer was accepted by post-counteroffer use of the services. Would having the salesperson also initialing the stroked out arbitration clause work? I’m assuming that they’re trained not to, but if one did would it stand up in court? I’ve stroked out clauses in standard contracts and had both parties initial the changes but a) I’m in Canada b) they were rental contracts and I was dealing directly with the landlord c) it was my understanding that the clauses were unenforceable in my province anyway and d) I never had a reason to go to court. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [April 28, 2011, 6:09pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/55 "2011-04-28T18:09:40Z")
> [@The\_Lurker\_Above](#): > > Would having the salesperson also initialing the stroked out arbitration clause work? I’m assuming that they’re trained not to, but if one did would it stand up in court? > > I’ve stroked out clauses in standard contracts and had both parties initial the changes but a) I’m in Canada b) they were rental contracts and I was dealing directly with the landlord c) it was my understanding that the clauses were unenforceable in my province anyway and d) I never had a reason to go to court. Well, that’s the agency question. Whether they had either actual or apparent authority to accept counteroffers with respect to arbitration. They almost certainly don’t have actual authority to do so. [Apparent authority](http://en.wikipedia.org/wiki/Apparent_authority) would be a whole other kettle of fish and depend on the specific facts of the negotiation context. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [April 28, 2011, 6:12pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/56 "2011-04-28T18:12:20Z")
> [@Whack-a-Mole](#): > > Does anyone here think this is a “good” thing? Yes, me. IME, class action lawsuits are mostly an opportunity for lawyers to make money. The settlements generally involve the supposed plaintiffs getting virtually nothing, while the lawyers make millions. [I’m aware that these settlements are approved by the judges.] I agree that these lawsuits have _some_ benefit, in discouraging companies from ripping people off. But the harm far outweighs the benefits, IMHO, in terms of 1) legal fees on both sides and 2) the fact that many companies have strong incentives to settle out-of-court even if they didn’t rip anyone off at all. [Even worse are the shareholder lawsuits, where the lawsuits themselves generally harm the plaintiffs - most of whom are still shareholders - more than the alleged cause of action.] Of course, this is about policy, not law. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [April 28, 2011, 6:18pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/57 "2011-04-28T18:18:04Z")
> [@Fotheringay-Phipps](#): > > I agree that these lawsuits have _some_ benefit, in discouraging companies from ripping people off. But the harm far outweighs the benefits, IMHO, in terms of 1) legal fees on both sides and 2) the fact that many companies have strong incentives to settle out-of-court even if they didn’t rip anyone off at all. I imagine you think this is a “proof.” Let’s look at a formally equivalent “proof.” > [@](#): > > I agree that going to the doctor has _some_ benefit, in that it can help cure sick people. But the harm far outweighs the benefits, IMHO, in terms of 1) you have to pay doctors and 2) many people go to the doctor even if they have symptoms that might resolve themselves on their own without treatment, but the patient is uncertain of that outcome. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [April 28, 2011, 6:20pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/58 "2011-04-28T18:20:54Z")
> [@Kimmy\_Gibbler](#): > > I imagine you think this is a “proof.” Let’s look at a formally equivalent “proof.” What’s nice is that you acknowledge that you are commenting about your own imagination. As such, I don’t need to respond further. Let your imagination run wild … ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2011, 6:23pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/59 "2011-04-28T18:23:00Z")
> [@Whack-a-Mole](#): > > Actually in this case no, I do not need to. > > You accused me of wanting the court to right a wrongness. > > I pointed out that four justices (and lower courts) felt the CA law was ok. > > Obviously five justices disagreed and carried the day. > > The difference is, while I do not think the court should be philosopher kings proclaiming anything they feel like, I feel outcomes are more important than your hidebound adherence to the letter of the law no matter the outcome. > > If several justices could see their way to harmonize the two laws I presume they had good legal reasoning to do so. You may feel the reasoning against it was better. Fine. > > However, your road is a scary one and one that denies me rights (the right to band together with others to stop a company from committing some fraud). > > If the court had harmonized the law and Congress wanted to be more clear on this point then Congress could have re-written the law to reflect that. Works both ways. Well, that summary ignores your little foray into claims that the difference between this case and Arizona’s were the result of constitutional violations vs. federal law violations, and that the Fourteenth Amendment was somehow key to one of those cases. If your point was merely that you’d have preferred the other outcome and there must have been some legal rationale that would have allowed you to get there… that’s fine. We view the roles of the judiciary differently. We both see them as one of three co-equal branches, but to you, that means that they should take an active role in shaping policy. To me, that means that they should be like referees, with no interest in who wins the game but a great deal of interest in following the rules. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 28, 2011, 6:25pm UTC](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953/60 "2011-04-28T18:25:04Z")
> [@Kimmy\_Gibbler](#): > > Well, that’s the agency question. Whether they had either actual or apparent authority to accept counteroffers with respect to arbitration. They almost certainly don’t have actual authority to do so. [Apparent authority](http://en.wikipedia.org/wiki/Apparent_authority) would be a whole other kettle of fish and depend on the specific facts of the negotiation context. Doesn’t completing the transaction and selling me the phone “accept” the (counter)offer? I’m thinking it does, it’s just a matter of what was actually agreed to (arbitration remains or is it removed). If my cross out doesn’t mean anything, then I’m baffled at the one-sidedness of the situation. To be clear, I’m trying to imagine a situation where the roles are reversed. If the 20 something salesperson had taken the time to re-read the contract and make sure nothing was changed, she could have caught the change and brought it to a higher up’s attention and/or just not completed the transaction. The salesperson decided not to read the contract (or didn’t care), much like the public doesn’t read the contract (or doesn’t care). However, the public is stuck with all the terms they “agreed” to by completing the transaction, so should AT&T be stuck by the changes they “agreed” to in my counter-offer when they accept it as is and sell me the phone. [Previous page](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953.md?page=2) [Next page](https://boards.straightdope.com/t/supreme-court-ends-class-action-lawsuits-at-t-mobility-llc-v-concepcion/579953.md?page=4)