The U.S. Supreme Court, in recent years, has provided companies with a powerful tool to avoid class action lawsuits: arbitration. In a series of decisions, the Supreme Court has held that class action waivers in otherwise valid arbitration agreements are themselves enforceable. See Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2312 (2013); AT&T Mobility v. Concepcion, 563 U.S. 333, 352(2011). Accordingly, many companies have woven arbitration clauses with class action waivers into their websites’ terms of use, warranties, and other consumer agreements with the hope that such arbitration clauses would void any efforts by consumers to file class action lawsuits.
On the surface, enforcing an arbitration clause appears to be fairly straightforward: A company would need to show that the parties have agreed to arbitration and the dispute at issue falls within the scope of the agreement. See, e.g., Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009); Combined Energies v. CCI, 514 F.3d 168, 171 (1st Cir. 2008); Cap Gemini Ernst & Young, U.S. v. Nackel, 346 F.3d 360, 365 (2d Cir. 2003).
