The future of class action waivers remains unclear. The U.S. Supreme Court heard oral argument in AT&T Mobility LLC v. Concepcion, U.S. No. 09-983, on November 9, 2010, in which the Court has been asked to decide whether the Federal Arbitration Act preempts states from conditioning the enforcement of an arbitration agreement on the availability of class-wide arbitration. Now we wait.
Meanwhile, another state court struck down a class action waiver as unenforceable. In Schnuerle v. Insight Communs. Co., L.P., 2010 Ky. LEXIS 288 (KY Dec. 16, 2010), the Kentucky Supreme Court held that a class action waiver contained in a cable Internet service provider agreement was unenforceable. The court, however, declined to strike the arbitration provision itself, noting the “long-standing public policy” in favor of arbitration. The result? On remand, the class action can proceed in an arbitration forum.