Originally from Dispute Resolution Journal

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I. INTRODUCTION

Class arbitration has lived a peculiar existence in the United
States. Ten years ago, the Supreme Court of the United States
“called it into existence”1 in its decision in Green Tree Financial
Corp. v. Bazzle,2 only to “eviscerat[e]”3 it in successive decisions in
Stolt-Nielsen S.A. v. AnimalFeeds International Corp.4 and AT&T
Mobility LLC v. Concepcion. 5 Commentators contend that Stolt-
Nielsen marked a significant encroachment of judicial review into
arbitral jurisdiction,6 while AT&T Mobility crippled consumer rights
that provide claimants access to class proceedings like class
arbitration.7 In the wake of these decisions, one commentator went
so far as to predict that “the class arbitration device [will likely]
wither away when the current docket of cases is concluded.”8 But is
class arbitration truly dead? Must parties, businesses and consumers
alike, settle for bilateral arbitration and all of its constraints?

This note will examine the vitality of class arbitration in the United
States following the Supreme Court’s 2013 rulings on class
arbitration: Oxford Health Plans LLC v. Sutter 9 and American
Express Co. v. Italian Colors Restaurant. 10 To start, Part II will
briefly review Stolt-Nielsen and AT&T Mobility and their specific
effects on parties’ access to class arbitration and class proceedings
generally. Part III will analyze Sutter with a particular focus toward
its effect on the judicial review of arbitrators’ awards. Part IV will
analyze Italian Colors with a particular focus toward its effect on
consumers’ access to class proceedings. Part V will attempt to
reconcile Sutter and Italian Colors through a broader discussion of
the Supreme Court’s political ideology. To conclude, Part VI will
propose steps contract drafters should now take in order to secure or
prevent the submission of disputes to class arbitration or class
proceedings generally.

II. THE PRIOR STATE OF ARBITRAL JURISDICTION AND
CONSUMER RIGHTS