After Class: Aggregate Litigation in the Wake of AT&T Mobility v Concepcion

Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court’s April 2011 decision in AT&T Mobility v Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of Concepcion warrants close scrutiny. Our analysis suggests that following Concepcion, some plaintiffs will be able to successfully challenge class waivers under certain circumstances. Also, the new Consumer Financial Protection Bureau—if it is not stillborn at the hands of hostile congressional midwives—is likely to eliminate some class action waivers in the financial services field. But most class cases will not survive the impending tsunami of class action waivers. And as this great mass of consumer protection, antitrust, employment, and other cases is swept out to sea, the question arises: What or who can fill the resulting enforcement gap?

And here, we would hope to see the “private attorney general” role assumed by class action lawyers over the past several decades give way to a world in which state attorneys general make unprecedented use of their parens patriae authority. Insulated from the threats posed by class action waivers and restrictive class action standing doctrine, attorneys general are now uniquely positioned to represent the interests of their citizens in the very consumer, antitrust, wage-and-hour, and other cases that have long provided the staple of private class action practice. And to tackle complex cases, underfunded attorney general offices will make use of the private class action lawyers who have acquired expertise in originating, investigating, and prosecuting class cases. Of course, there are political risks here—given the model’s dependency on contingent fee arrangements—but there are also substantial political benefits, as attorneys general around the country begin to take leadership positions in the sort of complex, big-ticket cases that are likely to contribute meaningfully to state coffers—and redress the injuries of consumers and employees who would otherwise have no recourse in a post-Concepcion world.