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