Class Action Waivers in Consumer Agreements: Lessons from American Express and Oxford Health

Best Practices for Structuring and Enforcing Consumer Arbitration Agreements

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


Conducted on Wednesday, August 14, 2013

Recorded event now available

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Program Materials

This CLE webinar will analyze the two new U.S. Supreme Court decisions on class action waivers in arbitration agreements from the perspective of part of the team that won AT&T Mobility v. Concepcion in the Supreme Court. The panel will discuss drafting enforceable consumer arbitration agreements in light of the rulings.

Description

The U.S. Supreme Court issued two long-awaited decisions in June—American Express Co. v. Italian Colors Restaurant and Oxford Health Plans L.L.C. v. Sutter—addressing the enforceability of class action waivers in consumer arbitration agreements.

Enforcement of class action waivers in consumer arbitration agreements has been a hotly contested issue since the Supreme Court's blockbuster 2011 ruling in Concepcion. Lower courts were divided on the meaning of Concepcion, and the plaintiffs' bar debuted a variety of creative challenges to these agreements.

Provisions requiring arbitration of disputes on an individual basis remain standard in millions of consumer contracts. Practitioners need to understand the new U.S. Supreme Court decisions and their impact for attorneys drafting consumer arbitration agreements.

Listen as our authoritative panel of class action litigators explains the practical impact of the two new U.S. Supreme Court decisions on drafting and enforcing class action waivers in consumer arbitration agreements.

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Outline

  1. Review of American Express Co. v. Italian Colors Restaurant and Oxford Health Plans L.L.C. v. Sutter rulings
  2. 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 to recover counsel fees
    6. Contractual fee-shifting clause
    7. Limited class action arbitration alternatives
  3. 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 contract, not when lawsuit filed

Benefits

The panel will review these and other key questions:

  • What are the key take away points for class action litigators from the American Express Co. v. Italian Colors Restaurant and Oxford Health Plans L.L.C. v. Sutter rulings?
  • What contractual language in consumer arbitration provisions will maximize the enforceability of class waivers?
  • What defense strategies should litigators employ in seeking to compel arbitration in a class action?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

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

Ranlett, Kevin
Kevin S. Ranlett

Partner
Mayer Brown

Mr. Ranlett is a litigator in the firm’s Supreme Court & Appellate and Consumer Litigation & Class...  |  Read More

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