Class Action Waivers in Arbitration Agreements: The Twenty-First Century Arbitration Battleground and Implications for the EU Countries

Linda S. Mullenix, Morris & Rita Atlas Chair in Advocacy at the University of Texas School of Law, has written “Class Action Waivers in Arbitration Agreements: The Twenty-First Century Arbitration Battleground and Implications for the EU Countries,” Forthcoming, 38 Emory Int’l L. Rev. (Spring 2024).  In her forthcoming scholarly article, Professor Mullenix analyzes United States Supreme Court jurisprudence related to class action waivers included in arbitration agreements and provides observations about collective action procedures in the European Union.

The abstract states:

Without doubt the U.S. Supreme Court in the twenty-first century has been obsessed with the problem of corporate attorneys’ inclusion of class action waivers in arbitration agreements. This article traces the emergence of the class action waiver issue, which developed in tandem with the plaintiffs’ embrace and proliferation of class action litigation at the end of the twentieth century. The discussion comments on plaintiffs’ initial attempts to request and secure class arbitration where the arbitration clauses were silent, culminating in Supreme Court’s opinion permitting arbitrators to determine this issue. With the Court’s opening the door to possible classwide arbitration, corporate lawyers regrouped to rethink the wording of their mandatory arbitration agreements, to specifically prohibit classwide arbitration. These corporate efforts and the successive redrafting of arbitration agreements prompted a series of class action waiver appeals to the Supreme Court, with the Court construing ever changing class action waiver formulations. Since 2010, the Court has decided eight class action appeals dealing with issues relating to class action waivers in arbitration agreements. The article analyzes the Court’s series of decisions relating to class action waiver provisions, focusing on the Court’s consistent repudiation of classwide arbitration as antithetical to the original concept of bilateral arbitration. The article observes that despite the Court’s clear rejection of almost all class action waiver provisions, plaintiffs’ attorneys regroup and repeatedly seek classwide arbitration by state legislative initiatives and construing arbitration agreements within the contours of the Court’s evolving class waiver jurisprudence. The article concludes with observations about class arbitration in other countries, and the implications of class action waivers for European Union countries that have recently implemented class action and collective redress procedures.

This and other publications authored by Professor Mullenix may be downloaded without charge from the Social Science Research Network.

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