User:RJaguar3/Consumer arbitration after AT&T Mobility v. Concepcion

Following Concepcion, many businesses introduced or renewed motions to move pending lawsuits to arbitration. In September 2011, J. Russell Jackson described the Supreme Court's ruling in Concepcion as "the decision that has launched a thousand motions", as defendants sought to compel arbitration of cases that had been pending "for some time", especially in California. In April 2012, Public Citizen published a list of 76 putative class actions where a court cited Concepcion in granting a motion to compel individual arbitration. Myriam Gilles said that the Concepcion decision had a greater impact on class actions than Wal-Mart v. Dukes, since Concepcion allowed businesses to avoid class actions by including arbitration clauses in boilerplate terms.

The Concepcion decision also impacted the usage of arbitration clauses in consumer contracts, including the usage of "consumer-friendly" arbitration terms like the ones in AT&T's agreement. Jean Sternlight said that the Concepcion decision would cause businesses to include arbitration clauses with class action waivers, saying that the Concepcion decision removed the possibility of "costly litigation" over whether such terms are enforceable. In a 2012 research paper, Myriam Gilles wrote that Justice Antonin Scalia's majority opinion in Concepcion led to a "race to the top" in implementing arbitration procedures that are more friendly to consumer claims and more likely to allow their vindication. Gilles wrote that corporate lawyers encouraged companies to implement terms similar to the ones used by AT&T Mobility and upheld in Concepcion. According to Gilles, many large consumer-oriented businesses changed their arbitration provisions in 2011 and 2012. However, Gilles noted that only 6 out of the 37 companies she examined had arbitration clauses that "offered anything close to AT&T's set of incentives, and none were quite as generous". George Padis, though, suggested that the ruling in Concepcion might cause businesses to "scale down ... procedural protections" for consumers in arbitration. In September 2011, Charles Silver and Maria Glover wrote that after Concepcion, companies would, instead of adopting the provisions of the AT&T Mobility agreement, implement arbitration terms favoring the business akin to those found in the earliest consumer arbitration clauses, adding that after the Concepcion decision, those clauses may be enforceable.

Several large businesses introduced arbitration provisions after Concepcion, and several companies' addition of arbitration clauses was reported by the media to have been prompted by the Supreme Court's ruling in Concepcion. According to a September 2011 CNN article, a Sony spokesperson said that Sony added an arbitration clause to its PlayStation Network terms of service because "[t]he Supreme Court recently ruled in the AT&T case that language like this is enforceable". PCWorld writer Jared Newman cited Sony and Microsoft as examples of companies that took advantage of Concepcion to add arbitration agreements with class action waivers. Rutledge and Drahozal wrote that Sony and Netflix added arbitration provisions following data breach class action litigation. Other companies reported to have added arbitration provisions to their consumer contracts after Concepcion include Umpqua Bank, Valve, eBay, PayPal, Instagram, and StubHub. American Arbitration Association Senior Vice President Richard Naimark said that a number of companies increased their usage of consumer arbitration after Concepcion, while before Concepcion, the number of consumer arbitrations administered by the AAA had been declining. Rutledge and Drahozal wrote that the adoption of arbitration in franchise contracts did not significantly increase after Concepcion or American Express Co. v. Italian Colors Restaurant, casting doubt on the hypothesis that Concepcion would cause businesses to adopt arbitration en masse.