I am delighted to post this blog courtesy of Professor Richard Reuben of the University of Missouri School of Law:
I finally had occasion to take a close look at AT&T v. Concepcion, which will be argued on Nov. 9, and think it could be a real sleeper.
There is a lot of spin in the briefs, but if you look at the 9th Circuit opinion, you can better see what is going on. In short, in Discover Bank the California Supreme Court applied general state unconscionability law to a claim that an arbitration provision that barred class actions and found that the clause was unconscionable. That opinion has been used to strike down other similar arbitration provisions, including the one struck down by the 9th Circuit in the AT&T case. At the U.S. Supreme Court, AT&T is essentially arguing that the Discover Bank standard is an arbitration-specific law that is preempted by the FAA. If that’s true and the 9th Circuit is reversed, one may reasonably question what is left of Section 2’s savings clause. After all, all Discover Bank did was apply general unconscionability law to the class arbitration context, and all the “Discover Bank standard” was was other cases using it as precedent. If that’s preempted, then how would any application of general contract law to arbitration be able to withstand preemption?
Much of course depends on what the Supreme Court does and says, but this could be a big one.
That’s my take. Thoughts?