The preemptive effect of valid arbitration agreements to preclude lawsuits in court, even class actions via arbitration clause class action waivers, has been reinforced by the U.S. Supreme Court time and again in recent years. My column “Arbitration Clause Class Waivers Upheld Again” (N.Y.L.J., Feb. 17, 2016) discussed salient case law. For a more copious legal study, see M. Hoenig and L. Brown, “Arbitration and Class Action Waivers Under Concepcion: Reason and Reasonableness Deflect Strident Attacks,” 68 Ark. L. Rev. 669 (December 2015). Indeed, just on May 15, The Supreme Court issued its decision in Kindred Nursing Centers L.P. v. Clark, 2017 U.S. LEXIS 2948, ruling that a nursing home’s arbitration agreement had to be enforced as preempting tort claims for injuries filed in Kentucky courts.
The spearhead high court decision holding that valid arbitration clauses preemptively trump lawsuits—even class actions where the arbitration clause contains a class action waiver—is AT&T Mobility v. Concepcion, 563 U.S. 333 (2011). In December 2015, the court’s decision in DIRECTV v. Imburgia, 136 S. Ct. 463, again upheld a class arbitration waiver clause in a consumer service agreement. The court observed that, while lower court judges can note their disagreement with Concepcion, “[n]o one denies that lower courts must follow” Concepcion. The Federal Arbitration Act “is a law of the United States and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it.” DIRECTV, 2015 U.S. LEXIS 7999, at *9-*10.
