In light of the Florida Supreme Court’s recent ruling in McKenzie Check Advance of Florida, LLC v. Betts, 38 Fla. L. Weekly S223, 2013 WL 1457843 (Fla. April 11, 2013), it is now clear that Concepcion applies to class action waivers in arbitration agreements.  In April 2011, the United States Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) held that state law decisions that find class action waivers in arbitration clauses to be unconscionable or void as against public policy were preempted by the Federal Arbitration Act (“FAA”).

In McKenzie, the plaintiffs brought suit asserting statutory claims based on the Florida lending practices statute, Florida Consumer Finance Act, Florida Deceptive and Unfair Trade Practices Act, and the Florida Civil Remedies for Criminal Practices Act.  Plaintiffs asserted that McKenzie Check Advance (MCA), under the deceptive guise of a check cashing service, was actually loaning money at exorbitant rates.  One of the named plaintiffs, Kelly, had signed a version of MCA’s arbitration agreement that contained a class action waiver.  The circuit court found that the class action waiver was unenforceable because it was void as against public policy.  The Fourth District Court of Appeal certified to the Florida Supreme Court the question of whether a class action waiver in an arbitration agreement violates public policy when the trial court is persuaded that the waiver prevents consumers from obtaining competent counsel. 

Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, the Florida Supreme Court concluded that the FAA preempts invalidating the class action waiver in McKenzie on the basis of it being void as against public policy.  The record evidence presented in McKenzie substantiated the public policy arguments rejected by the United States Supreme Court in Concepcion.  Thus, the Florida Supreme Court “conclude[d] that the basis for invalidating the class action waiver propounded by [the named plaintiff] Kelly based on the facts of this case [was] foreclosed by Concepcion.”