The SCOTUS ruling said that if there is: (1)a contract between the plaintiff and defendant that (2) required arbitration; and (3) banned participation in class actions
that agreement generally enforceable. (If you want to get super technical, you don't really even need #3 in there for a court to find that you can't bring a class action. All you need is 1 and 2, but most add 3 to cover their bases)
You have to have the contract and arbitration agreement for the SCOTUS opinion to apply. There's no contract between you and the company when you buy Yaz, Nutella, etc. There is a contract when you get a cell phone, credit card, bank account, etc. Those contracts always include #2 and #3, so the Supreme Court case effectively prevents cell phone providers, banks, credit card companies, etc from being sued. Most of the lawsuits out there now against these places pre-date that opinion (or pre-date when the arbitration clause was added to the contract.)
Ever since that opinion, companies that make things that include warranties, like cars, appliances, etc, are adding the arbitration provision into their warranty, making it harder to have class action lawsuits for manufacturing defects.
ETA - arbitration clauses are also included in many employment agreements (and in more and more since the SCOTUS opinion) which means workers who sign those agreements can't sue as a class for denying meal breaks, or for not paying minimum wage, etc.
now, if i were to call that number on the yaz comerical, would i get hooked up with a lawyer and actually get some money or no?
Maybe? If you did, it would not be a significant amount of money in the short run. I know very little pharmaceutical class actions, which are different beasts than a lot of others, because the injuries are physical, not economic.
My understanding is that they look for people that will sign declarations of their stories and their injuries to persuade the judge that these hundreds or thousands of victims were all hurt in the same way. It's against legal ethics rules to pay the victims for their declarations. If there's ever a settlement, money would usually be apportioned using some sort of criteria (eg more for people who had strokes, less for people who just had high blood pressure). The more people with more severe damages, the easier it is for them to negotiate a larger settlement.
Happy to try to answer more questions. I have a huge pile of work to do today so I might not respond to questions quickly but I'll be around all weekend.
Also, don't put your injuries or anything personal. Keep it general about the general process of class action litigation or this will start bordering on legal advice.
it just seems like most of the comericals during the day are of the get money quick type - big sky native american loans, j g wentworth and get money for your structured settlement and these lawsuits - that i thought it was a way to lure people into something with the promise of cash
Yeah, many of them are.
It amuses me that the commercials are for scams, then lawyers offering to get you out of the scam, then more scams, then lawyers offering to help you with your injuries with the scam, etc. Daytime cable shows and anything in the wee hours of the night - those advertisers know their audience.
There's pretty strict ethics rules on what you can and can't say in legal ads, and a lot of these skirt the line. The rules differ by state, so some states will see seedier ones than others.
ETA - arbitration clauses are also included in many employment agreements (and in more and more since the SCOTUS opinion) which means workers who sign those agreements can't sue as a class for denying meal breaks, or for not paying minimum wage, etc.
Wait - what?? Has that been tested? Is that going to stand up?? I can't imagine....
ETA - arbitration clauses are also included in many employment agreements (and in more and more since the SCOTUS opinion) which means workers who sign those agreements can't sue as a class for denying meal breaks, or for not paying minimum wage, etc.
Wait - what?? Has that been tested? Is that going to stand up?? I can't imagine....
That was the effect of Concepcion v ATT in April 2011. Lower courts are using that to kick employment and wage and hour class actions.
There's a miniscule loophole (basically some dicta in a footnote) in that opinion that lawyers are trying to tear wide open. To get technical here, Concepcion said that the arbitration clause couldn't be voided for being procedurally unconscionable, but the footnote said there may be other defenses to its enforcement. Most attempts to exploit this footnote have been unsuccessful, but there was one promising 2nd Circuit decision last February that basically said that the provision was unenforceable in a particular antitrust context because antitrust lawsuits, by definition, have to be class actions. If the class action ban was enforceable, the entire regulatory scheme would be undermined because everyone could then violate antitrust rules. (don't get too excited though because the reason the iPhone/AT&T antitrust class action got kicked was because of the Concepcion decision.)
what is the deal with all the commericals during the day calling on you to call if you have take Yaz, worked around aspestos, or have a mesh vagina devise? i thought there was some sort of SCOTUS that changed class action suits.
Can I just say that for a second I thought you were calling me a vagina.
Wait - what?? Has that been tested? Is that going to stand up?? I can't imagine....
That was the effect of Concepcion v ATT in April 2011. Lower courts are using that to kick employment and wage and hour class actions.
There's a miniscule loophole (basically some dicta in a footnote) in that opinion that lawyers are trying to tear wide open. To get technical here, Concepcion said that the arbitration clause couldn't be voided for being procedurally unconscionable, but the footnote said there may be other defenses to its enforcement. Most attempts to exploit this footnote have been unsuccessful, but there was one promising 2nd Circuit decision last February that basically said that the provision was unenforceable in a particular antitrust context because antitrust lawsuits, by definition, have to be class actions. If the class action ban was enforceable, the entire regulatory scheme would be undermined because everyone could then violate antitrust rules. (don't get too excited though because the reason the iPhone/AT&T antitrust class action got kicked was because of the Concepcion decision.)
I guess I don't understand why those things would be subject to arbitration in the first place. I see how if the employer is paying less than the contracted wage but more than minimum wage, the Conception decision would prevent employees from enforcing the higher wage. But wage and hour and etc are laws. If an employer is violating the law, I don't see how a contract with the employee would allow them to get away with that. A contract to break the law is void against public policy.
That was the effect of Concepcion v ATT in April 2011. Lower courts are using that to kick employment and wage and hour class actions.
There's a miniscule loophole (basically some dicta in a footnote) in that opinion that lawyers are trying to tear wide open. To get technical here, Concepcion said that the arbitration clause couldn't be voided for being procedurally unconscionable, but the footnote said there may be other defenses to its enforcement. Most attempts to exploit this footnote have been unsuccessful, but there was one promising 2nd Circuit decision last February that basically said that the provision was unenforceable in a particular antitrust context because antitrust lawsuits, by definition, have to be class actions. If the class action ban was enforceable, the entire regulatory scheme would be undermined because everyone could then violate antitrust rules. (don't get too excited though because the reason the iPhone/AT&T antitrust class action got kicked was because of the Concepcion decision.)
I guess I don't understand why those things would be subject to arbitration in the first place. I see how if the employer is paying less than the contracted wage but more than minimum wage, the Conception decision would prevent employees from enforcing the higher wage. But wage and hour and etc are laws. If an employer is violating the law, I don't see how a contract with the employee would allow them to get away with that. A contract to break the law is void against public policy.
I'm not defending the practice, but I'm not sure why you think wage and hour laws are "laws," but that false advertising, the Electronic Funds Transfer Act, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, the Sherman Antitrust Act, and any host of common law claims for fraud, conversion, misrepresentation, or breach of contract or breach of warranty are not laws or otherwise different in some meaningful respect from Title VII or the FLSA?
Anyway, there's a Supreme Court case from about 10-15 years ago...Circuit City versus someone that said employment disputes are arbitrable. There's a few other circuit court cases (and maybe a SCOTUS case, but I don't think so) that say that in the employment context, arbitration agreements have to (1) allow the employee access to all the statutory remedies they would have if they were having their claims heard in court (except now of course they don't have an automatic right to participate in a class action) and (2) provide meaningful access to discovery. So, you can't have an arbitration contract that cap punitives at $100 and refuse to pay attorneys fees in a Title VII case or one that grants both the employee and the employer exactly 1 deposition each. [these rulings only apply to employment, not to other contexts]
Wait - what?? Has that been tested? Is that going to stand up?? I can't imagine....
That was the effect of Concepcion v ATT in April 2011. Lower courts are using that to kick employment and wage and hour class actions.
There's a miniscule loophole (basically some dicta in a footnote) in that opinion that lawyers are trying to tear wide open. To get technical here, Concepcion said that the arbitration clause couldn't be voided for being procedurally unconscionable, but the footnote said there may be other defenses to its enforcement. Most attempts to exploit this footnote have been unsuccessful, but there was one promising 2nd Circuit decision last February that basically said that the provision was unenforceable in a particular antitrust context because antitrust lawsuits, by definition, have to be class actions. If the class action ban was enforceable, the entire regulatory scheme would be undermined because everyone could then violate antitrust rules. (don't get too excited though because the reason the iPhone/AT&T antitrust class action got kicked was because of the Concepcion decision.)
back when I was around, we saw a bunch of these arbitration clauses, and employers trying to use them to prevent administrative action (EEOC and state analogues) in employment discrimination cases... what I did involved more individual complaints, than class actions.
We defended claiming that the state has a separate interest from the injured individual, and that no waiver signed by an individual could be held against the state (meaning government, not necessarily only state gov).
We had some success with it, but nothing (as far as I can remember) that went as high as an appellate court... but we kept thinking that the same rationale would apply to wage and hour issues.
...now I'm wondering if anybody has picked up that thread and run with it...
That was the effect of Concepcion v ATT in April 2011. Lower courts are using that to kick employment and wage and hour class actions.
There's a miniscule loophole (basically some dicta in a footnote) in that opinion that lawyers are trying to tear wide open. To get technical here, Concepcion said that the arbitration clause couldn't be voided for being procedurally unconscionable, but the footnote said there may be other defenses to its enforcement. Most attempts to exploit this footnote have been unsuccessful, but there was one promising 2nd Circuit decision last February that basically said that the provision was unenforceable in a particular antitrust context because antitrust lawsuits, by definition, have to be class actions. If the class action ban was enforceable, the entire regulatory scheme would be undermined because everyone could then violate antitrust rules. (don't get too excited though because the reason the iPhone/AT&T antitrust class action got kicked was because of the Concepcion decision.)
back when I was around, we saw a bunch of these arbitration clauses, and employers trying to use them to prevent administrative action (EEOC and state analogues) in employment discrimination cases... what I did involved more individual complaints, than class actions.
We defended claiming that the state has a separate interest from the injured individual, and that no waiver signed by an individual could be held against the state (meaning government, not necessarily only state gov).
We had some success with it, but nothing (as far as I can remember) that went as high as an appellate court... but we kept thinking that the same rationale would apply to wage and hour issues.
...now I'm wondering if anybody has picked up that thread and run with it...
I feel like I read an opinion about this maybe a year or two ago, and I'm certain it went the right way - that is, the arbitration agreements didn't effect a government lawsuit. It will take me ages to find it or remember anything else on it, so you'll just have to take my word for it.
I have seen contracts that expressly forbid participation in any government or private legal investigation of any kind. Those are obviously void against public policy and not enforceable, but they go a long way in shutting witnesses up.
I have seen contracts that expressly forbid participation in any government or private legal investigation of any kind. Those are obviously void against public policy and not enforceable, but they go a long way in shutting witnesses up.
I've seen them, too... and they were the sort of thing that utterly pissed me off. Like, if somebody gets killed at work, you can't talk to the cops about it.
Yeah, those never got very far in my world. Not at all. But that's not to say that they didn't try. And that those types of clauses didn't prevent a lot of people from filing in the first place.
what is the deal with all the commericals during the day calling on you to call if you have take Yaz, worked around aspestos, or have a mesh vagina devise? i thought there was some sort of SCOTUS that changed class action suits.
Can I just say that for a second I thought you were calling me a vagina.
Or that you had some sort of special vagina device, ha!
I just wanted to say this may be one of my favorite threads of all time, thanks to ESF's brilliant explanation of the Concepcion case. I've never heard it explained so clearly, and although it still makes my head explode to think about the ramifications at least I understand it measurably better now after reading this.