Addressing an important issue that the U.S. Supreme Court will decide in the next few weeks, the Supreme Judicial Court of Massachusetts has held that a court may invalidate an arbitration agreement that contains a class action waiver where a plaintiff can demonstrate that his or her statutory rights cannot be vindicated in an individual arbitration. 

The ruling conflicts with the decisions of most other courts—including the Third Circuit in Homa v. American Express, the Ninth Circuit in Coneff v. AT & T Corp., and the Eleventh Circuit in Cruz v. Cingular Wireless—that under AT&T Mobility LLC v. Concepcion, there is no "vindication of rights" exception to the Federal Arbitration Act.

The Massachusetts court yesterday issued two opinions that had been joined for argument. In Feeney v. Dell, Inc., a consumer law case, the court invalidated the entire arbitration agreement because the claims involved were complex and the company's arbitration agreement provided no consumer incentives, "in stark contrast to the AT&T agreement in Concepcion, which had so many pro-consumer incentives that an individual might be better off in arbitration than in class litigation." 

The second opinion, Machado v. System4 LLC, extended Feeney's holding to employment claims, but enforced the arbitration agreement because the plaintiffs had not demonstrated that they lacked the practical means to pursue their claims in an individual arbitration.

Under review by the U.S. Supreme Court in Italian Colors Restaurant v. American Express Travel Related Services Co. is the Second Circuit’s ruling that the class action waiver in an arbitration agreement entered into by merchants who accept American Express cards could not be enforced because it would effectively preclude them from asserting federal antitrust claims against American Express. The Court heard argument on February 27, 2013, and will issue its opinion by the end of June.

We disagree with the legal conclusion reached by the Massachusetts court, but the real lesson to be learned is that the language used in an arbitration agreement can be critical to its enforceability.  We regularly counsel clients on how to address the issues raised in Feeney and Machado through careful drafting and enforcement of arbitration agreements.

Ballard Spahr’s Consumer Financial Services Group pioneered the use of pre-dispute arbitration provisions in consumer financial services agreements. It is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance. 

The CFS Group also produces CFPB Monitor, a blog that focuses exclusively on important Consumer Financial Protection Bureau developments. To subscribe to the blog, use the link provided to the right.

For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or, or Mark J. Levin at 215.864.8235 or


Copyright © 2013 by Ballard Spahr LLP.
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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.


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