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Volume 258—No. 10 moNDay, july 17, 2017
By Mark Spatz,
Matthew V. poVolny
and nicole paSchal
T
he 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 le
class action lawsuits.
On the surface, enforcing an arbi-
tration 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).
If only it were so easy. (Indeed,
the enforceability of an arbitration
provision in the terms and conditions
provided to consumers by Uber Tech-
nologies is currently pending before
the Second Circuit in Meyer v. Kalanick,
No. 16-2750.) Because the terms of
consumer arbitration agreements
are generally not negotiable and the
agreements themselves are not formed
through the typical means of offer and
acceptance, courts take great care in
analyzing whether an arbitration pro-
vision should be enforced against a
We Have an Arbitration Agreement.
Now What?
mark Spatz is a partner, matthew V. poVolNy
is counsel and Nicole paSchal is an associate at
Cohen & Gresser.
NEW YORK LAW JOURNAL SPECIAL REPORT
Litigation
SHUTTERSTOCK
Be mindful of key issues with enforcing consumer arbitration agreements.
