The Continuing Saga of Class Action Waivers in Massachusetts

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The Massachusetts Supreme Judicial Court has agreed to re-review a case involving the enforceability of class action waivers in arbitration provisions in light of last term's United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion.  In its 2009 decision in Feeney v. Dell Inc., the SJC had declared a class action waiver in a consumer contract unenforceable because it violated what the court described as Massachusetts' public policy in favor of consumer class actions.  After the U.S. Supreme Court's holding last year that the Federal Arbitration Act preempts a similar California rule (based on principles of unconscionability), the defendant on remand in Feeney renewed its effort to compel individual arbitration.  The Superior Court judge rejected the defendant's arguments, distinguishing Concepcion on its facts.  A description of this ongoing saga prepared by the New England Legal Foundation is here, and an article co-authored by two of us at Pierce Atwood after the Supreme Court's decision in Concepcion but before the Superior Court's' decision in Feeney is here.