In recent years the U.S. Supreme Court has consistently favored arbitration against efforts to limit it, so long as the parties’ intent to arbitrate is clear.  In 14 Penn Plaza v. Pyett, in which Proskauer represented the Petitioner, the Court held that parties to a collective bargaining agreement can require bargaining unit members to arbitrate discrimination claims if the agreement clearly calls for arbitration of such claims.  Then, last year, in Stolt-Nielsen v. AnimalFeeds, the Court authorized class arbitrations, again so long as the parties clearly agreed.

Today, in AT&T Mobility v. Concepcion, the Supreme Court overturned a Ninth Circuit decision and held that AT&T’s agreements with customers, which require individual arbitration of all disputes and prohibit class claims, were enforceable.

The dispute arose from a complaint by the Concepcions that AT&T had charged sales tax on mobile phones that AT&T had advertised as free.  The Concepcions doubly ignored the service agreement, by filing a lawsuit rather than an arbitration and pursuing it as a class claim.  The Ninth Circuit rejected AT&T’s argument based on the agreement terms, based on a well-worn tradition under California law and in the Ninth Circuit (which has been reversed on this subject before) that agreements like AT&T’s are unconscionable.

The Supreme Court ruled, 5-4, that the Federal Arbitration Act protected AT&T’s agreement.  Using arguments that have become familiar, Justice Scalia wrote that the purpose of arbitration is to offer a faster, less expensive alternative to litigation, and those aims would be substantially undermined by permitting class claims.  Justice Breyer, in dissent, noted that the Federal Arbitration Act preserves courts’ ability to invalidate arbitration agreements on state law grounds, and saw no reason that California should not be permitted to legislate in that area.

Although Concepcion was a consumer case, the Court’s reasoning would seem equally applicable to the employment context, and employers with existing arbitration policies, or who are considering adopting such policies, would be well advised to adopt a class action waiver as well.

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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.