class waiver in Massachusetts

2018One week later, the United States Supreme Court held in American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 238-239 (2013) (Amex), that an arbitration agreement's class waiver is enforceable even if the class waiver effectively precludes the plaintiff from vindicating his or her Federal statutory rights.

2017In response to Concepcion , we held in Feeney II that "a court may still invalidate a class waiver" post- Concepcion where, as here, "class proceedings are the only viable way for a consumer plaintiff to bring a claim against a defendant." Feeney II , 465 Mass. at 501 -502 , 989 N.E.2d 439 . **24 One week later, the United States Supreme Court held in American Express Co . v. Italian Colors Restaurant , 570 U.S. 228 , 238-239, 133 S.Ct. 2304 , 186 L.Ed.2d 417 (2013) ( Amex ), that an arbitration agreement's class waiver is enforceable even if the class waiver effectively precludes the plaintif

2013Concepcion, supra at 1750-1753.

2013In Machado v. System4 LLC, 465 Mass. 508 (2013) (Machado), we applied our holding from Feeney v. Dell Inc., 465 Mass. 470 (2013) (Feeney II), that, following the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), a court may properly invalidate a class waiver in an arbitration agreement if a plaintiff “can demonstrate that he or she effectively cannot pursue a claim against [a] defendant in individual arbitration according to the terms of the agreement.” Machado, supra at 513 , quoting Feeney II, supra at 472.

2023A judge enjoys “’broad discretion’ whether to grant or deny class status ” Gammella, 482 Mass. at 1 , quoting Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 361 (2008) “The right to a class action in a consumer protection case is of particular importance where, as here, aggregation of small claims is likely the only realistic option for pursuing a claim.” Feeney v. Dell, Inc., 454 Mass. 192, 202 (2009), abrogated on other grounds by Machado v. System4 LLC, 465 Mass. 508, 510 (2013) (Massachusetts policy in favor of class proceedings in consumer protection cases “may no longer serve, in and of

2013In Machado v. System4 LLC, 465 Mass. 508 (2013) (Machado), we applied our holding from Feeney v. Dell Inc., 465 Mass. 470 (2013) (Feeney II), that, following the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), a court may properly invalidate a class waiver in an arbitration agreement if a plaintiff “can demonstrate that he or she effectively cannot pursue a claim against [a] defendant in individual arbitration according to the terms of the agreement.” Machado, supra at 513 , quoting Feeney II, supra at 472.

2025Id. at 490. “[A] party moving for class certification need only provide ‘information sufficient to enable the motion judge to form a reasonable judgment’ that certification requirements are met.” Aspinall, 442 Mass. at 391–392, quoting Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 87 (2001).

2023A judge enjoys “’broad discretion’ whether to grant or deny class status ” Gammella, 482 Mass. at 1 , quoting Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 361 (2008) “The right to a class action in a consumer protection case is of particular importance where, as here, aggregation of small claims is likely the only realistic option for pursuing a claim.” Feeney v. Dell, Inc., 454 Mass. 192, 202 (2009), abrogated on other grounds by Machado v. System4 LLC, 465 Mass. 508, 510 (2013) (Massachusetts policy in favor of class proceedings in consumer protection cases “may no longer serve, in and of

2023A judge enjoys “’broad discretion’ whether to grant or deny class status ” Gammella, 482 Mass. at 1 , quoting Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 361 (2008) “The right to a class action in a consumer protection case is of particular importance where, as here, aggregation of small claims is likely the only realistic option for pursuing a claim.” Feeney v. Dell, Inc., 454 Mass. 192, 202 (2009), abrogated on other grounds by Machado v. System4 LLC, 465 Mass. 508, 510 (2013) (Massachusetts policy in favor of class proceedings in consumer protection cases “may no longer serve, in and of

2013See Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221, 232 (3d Cir. 2012), quoting Thibodeau v. Comcast Corp., 912 A.2d 874, 883-884 (Pa. Super.

2013In Brewer v. Missouri Title Loans, 364 S.W.3d 486, 494 (Mo.), cert, denied, 133 S. Ct. 191 (2012), the Missouri Supreme Court invalidated a class waiver provision in an arbitration agreement after concluding that “the totality of [the plaintiff’s] evidence, including the lack of available counsel, demonstrates that there is no practical, viable means of individualized dispute resolution.” The plaintiff in Brewer presented, among other evidence, evidence that her claim “would require significant expertise and discovery, and it would not be financially viable for an attorney because of the compl

2013See Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221, 232 (3d Cir. 2012), quoting Thibodeau v. Comcast Corp., 912 A.2d 874, 883-884 (Pa. Super.

2013See Randolph, supra at 90-92 (party that “seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive” bears burden of “showing the likelihood of incurring such costs”). 25 In cases where the prohibitive expense and nonredressability come as a result of a class waiver, Concepcion suggests that a plaintiff can only succeed in avoiding that class waiver where he or she can prove as a matter of fact that the class waiver provision (in conjunction with the other terms of the agreement) effectively prohibits him or her from pursuing a claim.

2013In Brewer v. Missouri Title Loans, 364 S.W.3d 486, 494 (Mo.), cert, denied, 133 S. Ct. 191 (2012), the Missouri Supreme Court invalidated a class waiver provision in an arbitration agreement after concluding that “the totality of [the plaintiff’s] evidence, including the lack of available counsel, demonstrates that there is no practical, viable means of individualized dispute resolution.” The plaintiff in Brewer presented, among other evidence, evidence that her claim “would require significant expertise and discovery, and it would not be financially viable for an attorney because of the compl

2013Similarly, in Amex III, supra, the third instalment in the “Amex trilogy,” the United States Court of Appeals for the Second Circuit held that because a class waiver provision in an arbitration agreement between American Express and businesses that accept American Express cards entirely “preclude[d] plaintiffs from enforcing their statutory rights [to bring antitrust claims under the Sherman Act], ... the arbitration provision [was] unenforceable.” Id. at 218.

2013See also Southland Corp. v. Keating, supra. The Supreme Court in Concepcion has declared that the inherent conflict between arbitration and class proceedings must be resolved in favor of arbitration, as long as a class waiver does not operate to deny a plaintiff any meaningful remedy.

2009Cf. Kristian v. Comcast Corp., 446 F.3d 25, 62 (1st Cir. 2006) (concluding that class arbitration bar was severable where arbitration agreement contained savings clause, but noting that courts typically prefer “declaring an arbitration agreement unenforceable rather than using severance as a remedy when fundamental elements of the arbitration regime are at issue,” and that severing class arbitration bar would be “difficult to justify” absent savings clause). 34 The defendants argue, correctly, that the absence of a severability or savings clause does not, by itself, necessarily mean that the c

2008United States v. Armstrong, 517 U.S. 456, 463-464 (1996).

2006Southern Bell Tel & Tel Co. v. Wilson, 305 So.2d 302, 304 (Fl.App. 1974) (decertifying a class where the identity of the members of the class required an inquiry as to whether each customer experienced an interruption in her telephone service).

1985With respect to the class claim, the defendants only offered not to “enforce nor attempt to enforce any provision of any lease which runs contrary to law and the law’s interpretation by the Courts.” We agree with the judge that this offer was “too indefinite ... to be regarded as reasonable.” Patry v. Harmony Homes, Inc., 10 Mass. App. Ct. 1, 6 (1980).