Co-authored by: Matt Moody

Professor Mary Kay KaneEditor’s note: This post is the first in a series of posts from the Class Action Lawsuit Defense Blog’s interview with Mary Kay Kane, former Dean and Chancellor and current Emeritus Professor of Law at the University of California’s Hastings College of the Law. Professor Kane is the author of the Nutshell on Civil Procedure, the co-author of the Hornbook on Civil Procedure, the Hornbook on the Law of Federal Courts, as well as the second and third editions of the treatise Federal Practice and Procedure. Professor Kane is also the author of “The Supreme Court’s Most Recent Class Action Jurisprudence: Gazing Into a Crystal Ball,” which will be published in the upcoming issue of the Lewis & Clark Law Review.  The views expressed herein are hers alone.

What class action decision do you think has been the most important from the last decade?

This may be a surprise, but I really think AT&T Mobility LLC v. Concepcion is the most important decision of the last decade. Although it involves class arbitrations, and not  class action litigation, I think it has huge implications for class actions because what the Court has done is made the Federal Arbitration Act predominant and preempted state efforts to do anything in this area.  It has said to companies seeking to limit their exposure to class actions : all you have to do is put an arbitration clause into your agreements. The Court has essentially wiped out a whole swath of potential class actions because if companies put an arbitration clause into their agreements, they know, if a dispute arises, they won’t have to defend it on a class basis.

This is not to say that courts won’t try to distinguish the cases before them from Concepcion, which we recently saw in the American Express Merchants litigation in the Second Circuit, for example.  I thought that was an interesting case, but it was tied to federal law—there’s a whole history of promoting enforcement of federal law in the anti-trust and securities areas.  Whether that argument will be viewed as bogus or not by other courts is another discussion, but certainly it will be limited to special types of federal statutory claims.  I would be surprised if a court would rule similarly under, for example, any of the federal consumer statutes—those are not regulated areas the same way the securities or anti-trust fields are.

I’ve studied all the cases that came down in the lower courts in the first six months following last year’s decisions, and Concepcion, in some ways, had the most bite, because it is harder for courts to get around it.  The court in American Express was able to, using the federal law argument, but despite other courts trying, it’s very hard to maneuver around Concepcion.  This is in contrast to Wal-Mart, from which the lower courts are distinguishing their cases.