In its previous three terms, the U.S. Supreme Court has built a wall of major rulings enforcing bilateral contracts that would ban class actions in arbitrations: Stolt-Nielsen v. AnimalFeeds Int’l, 130 S. Ct. 1758 (2010); AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011); and CompuCredit. v. Greenwood, 132 S. Ct. 665 (2012). Those decisions recognize that, under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., class arbitration is a matter of contract, and therefore arbitration agreements must be enforced “in accordance with the terms of the agreement.” Stolt-Nielsen and Concepcion also have emphasized “the fundamental changes brought about by the shift from bilateral arbitration to class-action arbitration,” Stolt-Nielsen, which “make[] the [arbitration] process slower, more costly, and more likely to generate procedural morass than final judgment,” Concepcion.
These distinctions cast doubt on the notion that a party can be deemed to have agreed to class arbitration merely by agreeing to bilateral arbitration.
