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Since the U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), discussion has heightened regarding the use of class, representative and collective action waivers in conjunction with binding arbitration agreements (“class arbitration waivers”). In many ways, Concepcion is a green light for using such class arbitration waivers to protect against class and collective actions, but there is a significant possibility that Concepcion will not preclude all such actions. Several lower courts have invalidated class arbitration waivers relying on the view that the waiver at issue interfered with the plaintiff’s vindication of a claim or of a particular right.

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