The post-oral-argument betting is that the Supreme Court will uphold California’s prohibition on class action waivers in arbitration agreements, in AT&T v. Concepcion — through some combination of conservative Justices concerned about protecting states’ rights and less conservative judges concerned about unconscionability.

So what would the world look like if the Court rules against AT&T?  The arbitrability of a class action will be determined state by state.  My home state of Massachusetts, as usual, was in the vanguard; a year ago the state’s highest court ruled in Feeney v. Dell that class action waivers could not be used in consumer arbitration clauses, similar to the California rule challenged in Concepcion.  Now, in a case called Marchado v. NECCS Inc., a Massachusetts trial court judge has for the first time extended the Dell rule to hold that such waivers also are inappropriate in the employment context.  Marchado specifically involved a franchise agreement, in which the plaintiff challenged independent contractor status, but it seems likely that the court would have ruled the same way if the argument had been made by an acknowledged employee.

Despite its increased appearance in recent years, mandatory arbitration in the employment context has never been an unalloyed benefit to employers.  Even apart from litigation about the unconscionability or enforceability of such agreements, arbitration has its share of defects — it is not always less expensive than litigation, suffers from a lack of discovery, and there is no meaningful ability to appeal.  In class cases in particular, our experience is that arbitrators also can be less sensitive to the prerequisites for class certification than a judge forced to make findings under Rule 23 or the state equivalent.

So if Massachusetts’ and California’s hostility to class action waivers is picked up by other states, that may not be entirely bad news for employers.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.