Sotomayor on Arbitration

With the first Monday in October nearly upon us, it will be interesting to see how Justice Sotomayor votes in the Supreme Court’s upcoming arbitration cases, especially the controversial AT & T v. Concepcion. Sotomayor did not participate in Stolt-Nielsen, which produced a 5-3 majority with Ginsburg, Breyer, and the now-retired Justice Stevens in the minority. Even if Sotomayor and Justice Kagan react against mandatory arbitration in at least some circumstances, they may not change the Courts’ outcomes. But this brief article by Rodney Quinn Smith reviewing Justice Sotomayor’s decisions in 2nd Circuit cases addressing arbitration suggests she may be skeptical of mandatory consumer arbitration. She was on a panel that rejected a class waiver in In re American Express Merchants Litigation and she authored an opinion in Specht v. Netscape Communications Corp. holding that an internet user was not bound by an arbitration clause because a reasonable user would not have had the chance to read the arbitration clause prior to downloading the program in question.