Class Action Arbitration Waivers After Stolt-Nielsen

Drafting and Defending Waivers Amid Evolving Case Law

Supreme Court refuses to impose class arbitration where agreement silent on class arbitration

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, August 3, 2010

Recorded event now available

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Program Materials

This CLE webinar will provide practitioners with an analysis of the impact of Stolt-Nielsen on the enforceability of class arbitration waivers and a review of emerging case law interpreting Stolt-Nielsen and open issues for future litigation. The panel will provide best practices for drafting enforceable waivers.

Description

In Stolt-Nielsen v. AnimalFeeds, the Supreme Court ruled class action arbitration may not be imposed on parties whose arbitration agreement is silent on class arbitration. The Court also discussed and shed some light on its Green Tree and Hall Street Assocs. decisions.

Days later, the Court vacated and remanded the 2nd Circuit's In re American Express Merchants' Litig. decision that refused to enforce express class arbitration waiver provisions. The Court’s ruling here suggests that class arbitration waivers may now be given greater legal effect.

There are between 100 to 200 pending class arbitration proceedings that are likely to invoke the Stolt-Nielsen decision, and lower court decision are also beginning to emerge. Some of the issues left unresolved by Stolt-Nielsen are sure to be fodder for future litigation as well.

Listen as our authoritative panel of complex and class action litigation attorneys analyzes the Stolt-Nielsen decision, its impact on the enforceability of class action arbitration waivers, and best practices for drafting and enforcing class action arbitration waivers.

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Outline

  1. Analysis of Stolt-Nielsen decision
    1. Impact on Green Tree v. Bazzle and Hall Street Associates v. Mattel
    2. Issues left unresolved by the Court
  2. Subsequent case law
    1. Supreme Court’s vacatur and remand in In re American Express Merchants’ Litigation
    2. Supreme Court’s granting of cert in AT&T Mobility v. Concepcion
    3. Emerging lower court decisions applying Stolt-Nielsen
  3. Strategies for drafting class action arbitration waivers
    1. Principle of bilaterality or fairness
    2. Cost of arbitration
    3. Location of arbitration
    4. Choice-of-law clause
    5. Right of prevailing consumer or employee to recover counsel fees
    6. Contractual fee-shifting clause
    7. Limited class action arbitration alternatives
  4. Best practices for enforcing class action waivers in court
    1. Reliance on case law enforcing waivers
    2. Class actions are just procedural devices
    3. Fee-shifting statutes
    4. Determining unconscionability at time of contracting, not when lawsuit filed
    5. FAA preemption arguments

Benefits

The panel will review these and other key questions:

  • What contractual language is needed to evidence an intent to submit to class arbitrations?
  • How does the Stolt-Nielsen ruling impact the standard for vacatur of an arbitral award?
  • What is the anticipated impact of Stolt Nielsen on consumer arbitrations?
  • In vacating the Second Circuit’s American Express ruling, is the Supreme Court giving credence to giving class arbitration waivers greater legal effect?

Faculty

Bryan A. Fratkin
Bryan A. Fratkin

Partner
McGuireWoods

His practice focuses on business litigation, with an emphasis on consumer financial services, securities, and antitrust...  |  Read More

Archis A. Parasharami
Archis A. Parasharami

Partner
Mayer Brown

Mr. Parasharami has experience litigating the enforceability of arbitration agreements, with a particular emphasis...  |  Read More

Todd L. Nunn
Todd L. Nunn

Partner
K&L Gates

His practice emphasizes electronic discovery and document production and class action defense. His class action...  |  Read More

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