By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center (CAC). Wydra's analysis is cross-posted at CAC's Text & History blog.
You know it's been a less-than-thrilling morning at the Supreme Court when the only time the courtroom audience really perked up was at a rather inexplicable joke by Justice Stephen Breyer about a "9,000-foot cow." (Something about how mountainous Switzerland could discriminate against other European countries' milk products by enacting the facially neutral law that it will only buy milk from cows that graze in meadows above 9,000 feet.) Perhaps that is inevitable in a case that involves preemption doctrine, state contract principles of unconscionability, and forced arbitration. But as complicated as the legal argument in AT&T v. Concepcion may have been in the Court today, it was perhaps just as impenetrable as what is at the core of the case: the lengthy, legalese-heavy, fine print that many of us never read in our cell phone contracts (or employment contracts, health insurance agreements, or other contracts that consumers are effectively forced to sign these days in order to obtain goods and services). And in many of those contracts-as in the contract the Concepcions signed with AT&T-the fine print will require that all disputes be resolved through arbitration, not through the court system, while banning class actions. Accordingly, the Court in Concepcion could decide whether individuals can band together to hold big corporations accountable for misconduct-including discrimination in the workplace and widespread consumer fraud in the marketplace-or whether corporations can get away with wrongdoing so long as they do it on an individually small scale, making individual claims too small to pursue.
The Concepcions sued AT&T on behalf of themselves and all others who were charged $30.32 in sales tax for a supposedly free mobile phone. If successful, the class action could have yielded millions of dollars for all of AT&T's customers who were improperly charged. But because the arbitration agreement contained a provision banning class actions, the Concepcions were faced with fighting just for their own $30, an amount over which it's hardly worth the time and expense of pressing a legal claim against a corporate giant like AT&T. The company would essentially get away with allegedly fraudulent behavior because the fraud was, for each consumer, not worth fighting over when the expense of filing fees, lawyers, etc., are taken into account.