The Failing Faith in Class Actions: Dukes v. Wal-Mart and AT&T Mobility v. Concepcion

Catherine L. Fisk, UC Irvine School of Law
Erwin Chemerinsky, UC Irvine School of Law


In Wal-Mart v. Dukes and AT&T Mobility v. Concepcion, the Supreme Court revamped the law concerning the Federal Arbitration Act and Rule 23 of the Federal Rules of Civil Procedure, allowing businesses to insulate themselves from class action suits by employees and consumers. Each decision has significant implications within its field (employment discrimination law and consumer law, respectively). Together, the two decisions allow companies to opt out of class action liability through contract and make it more difficult to bring class actions against corporations that do not use such contracts. Collectively, they reflect the belief of the five conservative Justices in the majority that companies must be protected from litigation that is large simply because companies are large. Big companies, like Wal-Mart and AT&T Mobility, that deal with thousands or millions of consumers and employees enjoy certain strategic advantages because of their size. Similarly, class actions pose certain strategic advantages because of their size. The current Court majority has used its power to protect companies from big litigation. In so doing, the Court has abdicated its responsibility to interpret federal laws on employment, arbitration, and class actions consistently with Congress’s intent to balance the interests of employees and consumers with those of large corporations. This article examines what Wal-Mart and AT&T mean for future employment class actions.