The rise and fall of class

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The rise and fall of class

September 19 Article by John M. It is the first choice of almost no one as a means of resolving disputes involving large numbers of claimants or respondents. Rather, it is primarily a creature of the courts: The Supreme Court called it into existence in its Bazzle decision inand effectively disowned it in its Stolt-Nielsen decision in Class arbitration is, in its origins, a reaction to a reaction to a reaction: A reaction of the courts to the reactions of class action lawyers to the reactions of corporations to class actions.

The first reaction was of large corporations that do business with significant numbers of customers or employees against class actions, as that procedural device is used in American courts. Many corporations came to feel that class actions, used to aggregate claims of individuals for damages in small amounts that would not individually make it economical to retain a lawyer, were used primarily to enrich the lawyers who brought the class actions.

They point to a history of such actions being settled after a class action was certified, when the risk of an adverse decision became great enough to persuade the defendant to agree to a settlement that would pay a large fee to the class action lawyer, but would only pay such a small amount to each class member that many class members never claimed their shares.

This reaction did not originate in the federal courts, which were generally reluctant to find arbitration agreements unconscionable. In the Bazzle case, plaintiffs challenging the legality of a home improvement loan contract had brought a class action in South Carolina state court.

The South Carolina court certified a class action, as requested by the plaintiff, and then granted the defendant's motion to compel arbitration by ordering the class action so certified to arbitration pursuant to the arbitration clause in the representative plaintiff's contract.

The same arbitrator to whom that arbitration was assigned subsequently certified, without a court order, a second class arbitration brought by a different plaintiff against the same defendant involving a similar challenge to the legality of a mobile home purchase contract.

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Substantial awards in favor of both classes were subsequently confirmed by the South Carolina trial court and upheld by the Supreme Court of South Carolina. The Supreme Court's decision in the Bazzle case is fragmented into four opinions, none of which commanded a majority of the Court.

The plurality decision by Justice Breyer, for four justices, held that the South Carolina courts should have allowed the arbitrator to make the threshold determination of whether the arbitration clause in each contract permitted arbitration on a class basis, rather than deciding themselves that the arbitration clauses permitted class arbitration.

Unsurprisingly, he concluded that the contracts did in fact permit class arbitration. Shortly after the decision came out, the American Arbitration Association AAA realized that the Supreme Court had opened the door for arbitrators to certify class proceedings without specific judicial direction, and concluded that new rules would be needed to handle what amounted to a new type of proceeding.

Within six years, requests for class arbitration had been filed with and administered by the AAA under its new rules. First, mindful that arbitrators do not have the status or powers of federal or state judges, and also mindful of the economic burden that any class proceeding puts on the respondent, the Supplementary Rules built automatic stays into the class arbitration process to allow any party to seek judicial review of the arbitrator's decisions at two critical points prior to the final award.

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Because class arbitration proceedings have the potential to affect large numbers of absent class members, whose identities may be difficult to ascertain, the AAA decided that proceedings conducted under the Supplementary Rules should be open to unprecedented public scrutiny.

The Supplementary Rules thus provide that: All class arbitration hearings and filings may be made public, subject to the authority of the arbitrator to provide otherwise in special circumstances. Many class action lawyers embraced the new forum, and filed demands for class arbitration in large numbers.

One might have expected such corporations to have concluded that they would benefit from having class claims considered by experienced arbitrators, rather than by juries, and some did. Their reaction to the Bazzle decision was to begin to incorporate explicit class action waivers into their contracts with consumers and employees.

As noted above, the Federal Arbitration Act leaves open the possibility that any contract, including an agreement to arbitrate, may be challenged as unconscionable.

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Arbitration clauses themselves have sometimes been found unconscionable, when the court found the clause to frustrate fundamental rights, but such decisions have been rare, especially in federal court.

For example, the First Circuit found such a waiver along with a waiver of treble damages to be unenforceable in an antitrust action, and after severing the waiver ordered that "arbitration must proceed on a class or consolidated basis. Education Financial Partners, surveyed the state and federal cases dealing with class action waivers, and found a class action waiver in an arbitration clause unconscionable under California law, and therefore unenforceable: We conclude that the district court properly ruled that the Note's class action and class arbitration waiver clause is unconscionable.

It did not, however, because the decision of the Supreme Court in Stolt-Nielsen had altered the class arbitration landscape before it was handed down.

The rise and fall of class

That suit was consolidated with suits by other shippers, and then ordered to arbitration under arbitration agreements in the charter party agreements between Stolt-Nielsen and the various shippers.

The parties then entered into a supplemental agreement, under which they agreed to submit "the question of class arbitration" to a panel of three arbitrators. As the Supreme Court put it: To understand the Supreme Court's decision in Stolt-Nielsen requires a short excursion into the doctrine called "manifest disregard of the law.

Swan, the Supreme Court stated, in what is universally acknowledged to have been dictum, that "interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation.

That question was put squarely to the Supreme Court for the first time since Wilko in the Hall Street Associates case inbut the Court left the question unanswered.

Swan and later decisions relying on it, the Court rejected the use of Wilko to support the right of parties to expand judicial review, but -- in a discussion that can fairly be characterized as maddening -- avoided committing itself to what "manifest disregard" should be understood to mean: Hall Street overlooks the fact that the statement it relies on expressly rejects just what Hall Street asks for here, general review for an arbitrator's legal errors.

Then there is the vagueness of Wilko's phrasing. Nor did the Court clarify the doctrine of manifest disregard when it returned to the question in Stolt-Nielsen: Assuming, arguendo, that such a standard applies, we find it satisfied for the reasons that follow.The Rise and Fall of Class in Britain Although it is widely believed that the British are obsessed with class to a degree unrivaled by any other nation, politicians in Britain are now calling for a "classless society," and scholars are concluding that class does not matter any $ Italian Fascism has emulated ancient Rome and Mussolini in particular emulated ancient Roman leaders, such as Julius Caesar as a model for the Fascists' rise to power and Augustus as a .

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In , the plaintiffs, the Zwanigas, commenced a proposed class action against Revolution Food Technologies, a vending machine distributor, and Johnvince Foods, a vendor of candies and confections.

The rise and fall of class

A companion class action was also commenced against the directors of Revolution.

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