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UPDATED: ARG TRANSCRIPT NOW AVAILABLE! From Hooters' Waitresses to Movie Buffs, Anticipation for Supreme Court's AT&T Mobility Arguments (Nov. 9)


Vincent and Liza Conception learned the hard way that there is no such thing as a free lunch. Or in this case, a free cell phone.

In 2006, the Concepcions filed suit against their wireless service provider for allegedly defrauding them by charging $30 in sales tax on a cell phone advertised as “free.” A Southern California federal district court denied AT&T Mobility’s motion to compel the Concepcions to submit to individual arbitration under the parties’ arbitration agreement.

The court held that under California law, the agreement’s class-waiver provision is unconscionable, and that the FAA does not preempt California unconscionability law. The Ninth U.S. Circuit Court of Appeals affirmed.

The Ninth Circuit opinion, briefs, court papers, and an argurment preview appear at Scotusblog.

Tomorrow, Tuesday Nov. 9, the U. S. Supreme Court will hear oral arguments in AT&T Mobility v. Concepcion, 09-893. The case turns on whether the Federal Arbitration Act preempts states from conditioning the enforcement of an arbitration agreement on the availability of particular procedures—here, class-wide arbitration—when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.

In other words, is a contract waiving consumers’ rights to class action unconscionable and, if so, does the FAA preempt state unconscionability law?

AT&T Mobility follows a string of arbitration related cases heard by the Court. Last spring, the Court held that courts and arbitrators may not impose their own policies favoring class actions on parties that had not contracted specifically for class-wide arbitration. Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (April 27, 2010).

In Rent-A-Center, West Inc. v. Jackson, 130 S. Ct. 2772 (June 21, 2010), the Court sent the case to ADR for determination on the matter’s arbitrability, instead of a court.

In Granite Rock Co. v. International Brotherhood of Teamsters, 130 S.Ct. 2847 (June 24, 2010), the court held that courts must resolve any issue that calls into question the formation or applicability of the specific arbitration clause that the party seeks to have the court enforce.

For more on the cases, see Alternatives. CPR members can log in for free access. Also, use the search function on the home page of this site for extensive CPR Institute analysis on the three cases.

In addition, an analysis of the cases can be found on Corporate Counsel’s website.

AT&T Mobility could have wide ranging implications, from a Washington, D.C., waitresses’ suit against Hooters discussed in today’s Washington Post, to the future of Hollywood legal thrillers to, as pointed out by the respondents' team on Huffington Post today, consumer protection.

Briefs and transcripts of the oral arguments will be available on and Scotusblog.

Here is a direct link to the U.S. Supreme Court's transcript of the Nov. 9 argument: 

--Darren Bleier, CPR Intern