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Full-Text Articles in Law
The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier
The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier
Articles
Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …
Enforceability Of Mandatory Arbitration Clauses For Shareholder-Corporation Disputes, Garry D. Hartlieb
Enforceability Of Mandatory Arbitration Clauses For Shareholder-Corporation Disputes, Garry D. Hartlieb
Michigan Business & Entrepreneurial Law Review
Investor litigation is an increasingly vexatious field of law. Nearly every time a significant change of control or corporate ownership occurs, plaintiffs’ attorneys file standardized complaints to set in motion class action suits. Ultimately, the settlements shareholders receive fail to achieve the practical effects that parties on both sides desire. Shareholders may receive pennies on the dollar of what they allege was lost by corporate wrongdoing, and, in some cases, shareholders may not receive monetary recovery as the settlement requires only that the corporation to make changes to its governing documents. These suits distract directors and management from the core …
Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro
Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro
University of Michigan Journal of Law Reform
The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
University of Michigan Journal of Law Reform
The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
University of Michigan Journal of Law Reform
By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
University of Michigan Journal of Law Reform
Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …
Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook
Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook
University of Michigan Journal of Law Reform Caveat
This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …
Cruises, Class Actions, And The Court, David Korn, David Rosenberg
Cruises, Class Actions, And The Court, David Korn, David Rosenberg
University of Michigan Journal of Law Reform Caveat
As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong
Michigan Journal of International Law
Before outlining the structure of this Article, it is useful to clarify two matters regarding definitions and scope. First, in the context of this Article, an "international class award" is an award resulting from an international class arbitration. There are three different types of international class arbitrations: (1) a class arbitration that includes at least one defendant from a country other than the seat of the arbitration, which means that enforcement of an award will have international implications; (2) a class arbitration that involves defendants that may be based in the arbitral forum but that also hold significant foreign assets …