The death of wage hour class actions might have been exaggerated!

Contrary to the prediction I made in my last post, there are those who believe that wage / hour class actions are not dead. 

Public Justice, is an organization in D.C. which “marshals the skills and resources of over 3,000 of the nation’s top lawyers to fight for justice through precedent-setting and socially significant litigation.”

They believe that the holding of Concepcion is limited.  In a recent email, they have stated:

“This is the end of consumer, employment, and civil rights class actions.” That’s what corporate defense lawyers are saying about the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion. We think they’re wrong. Spread the word. Forward this email to others. Join the fight!

In AT&T Mobility, a case filed in federal court, the U.S. Supreme Court held 5 to 4 that the Federal Arbitration Act (“FAA”) preempts California’s Discover Bank rule. In Discover Bank, the California Supreme Court held that corporations could not enforce adhesive contracts that barred consumers from bringing class actions where the consumers alleged a “scheme to deliberately cheat large numbers of consumers out of individually small amounts.” The Supreme Court’s preemption holding in AT&T Mobility was based on two key assumptions: (1) that AT&T Mobility’s arbitration clause would enable the plaintiffs to vindicate their rights in individual arbitration; and (2) that the Discover Bank rule would force parties into class arbitration against their consent notwithstanding the purported fairness of AT&T’s clause. The Court saw Discover Bank as setting out a categorical rule that would declare all class action bans in consumer adhesion contracts unenforceable, without the need for evidence.

There is no question that AT&T Mobility will benefit corporations (especially unscrupulous ones) and hurt consumers and workers. But there are strong arguments that the decision should not kill — or let corporations kill — many class actions. Public Justice has won — and helped others win — more cases preserving class actions and striking down class action bans than any law firm in the country. We believe that the facts of cases, including the facts (and absence of facts) in AT&T Mobility, are critically important. And we believe that the advocates for unlimited and unaccountable corporate power have gone into their victory dance prematurely.

For instance, AT&T Mobility should not mean that the FAA bars state laws from striking down a class action ban where a factual record proves the ban would effectively eliminate valid claims. After all, the U.S. Supreme Court has consistently held that arbitration clauses are enforceable only so long as they permit parties to vindicate their rights. Nor should the decision mean that the FAA preempts state laws that would permit parties to choose class arbitration (as opposed to requiring class arbitration against the parties’ consent). AT&T Mobility may not require state courts to enforce all class action bans, given that Justice Thomas — the crucial fifth vote in AT&T Mobility –– has long said the FAA does not apply in state court. And AT&T Mobility will not apply at all to claims based on federal law; cases involving arbitration clauses designating the now-out-of-the-business National Arbitration Forum as the arbitrator; or class actions in which no contract or contractual class action ban exists.”

Well, I am passing this good word along and hoping that they are successful at limiting the reach of this awful decision.  Wish them luck with me.