Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 31

DON’T FEAR THE REAPER: CLASS ARBITRATION AFTER SUTTER AND ITALIAN COLORS

Robert B. Hillenbrand

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”  in its decision in Green Tree Financial Corp. v. Bazzle,  only to “eviscerat[e]”  it in successive decisions in Stolt-Nielsen S.A. v. AnimalFeeds International Corp.  and AT&T Mobility LLC v. Concepcion.  Commentators contend that Stolt-Nielsen marked a significant encroachment of judicial review into arbitral jurisdiction,  while AT&T Mobility crippled consumer rights that provide claimants access to class proceedings like class arbitration.  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.”  But is class arbitration truly dead? Must parties, businesses and consumers alike, settle for bilateral arbitration and all of its constraints?