Circumventing Concepcion: Conceptualizing Innovative Strategies to Ensure the Enforcement of Consumer Protection Laws in the Age of the Inviolable Class Action Waiver
In the wake of the Supreme Court’s decision in AT&T Mobility v. Concepcion, class action waivers have become seemingly invulnerable to attack. Class action attorneys have become dispirited that consumer rights seem impossible to enforce. While the Federal Arbitration Act has been written about at length, this Note adds to that scholarship by proposing several new solutions to the problems posed by class action waivers. In addition, this Note seeks to consolidate other proposals, respond to major objections to these proposals, and in its conclusion, compare the effectiveness of these various proposals to settle on one preferred solution. Ultimately, the solutions to the problem of class action waivers fall into three broad categories: (1) methods that would allow consumers to viably pursue their claims individually in arbitration, (2) methods that would allow consumers to escape from their arbitration agreements and pursue class litigation in court, and (3) methods that bypass the class action device entirely by instead relying on government enforcement of consumer protection laws. After proposing and evaluating several solutions in each category, this Note concludes that the latter category—improved government enforcement of consumer protection laws—is likely to be the most effective.