584 F. 3d 849, reversed and remanded.

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Breyer, J., dissenting



on writ of certiorari to the united states court of appeals for the ninth circuit

[April 27, 2011]

Justice Breyer , with whom Justice Ginsburg , Justice Sotomayor , and Justice Kagan join, dissenting.

The Federal Arbitration Act says that an arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for<linebreak>the revocation of any contract .” 9 U. S. C. §2 (emphasis added). California law sets forth certain circumstances in which “class action waivers” in any contract are unenforceable. In my view, this rule of state law is consistent with the federal Act’s language and primary objective. It does not “stan[d] as an obstacle” to the Act’s “accomplishment and execution.” Hines v. Davidowitz , 312 U. S. 52, 67 (1941) . And the Court is wrong to hold that the federal Act pre-empts the rule of state law.


The California law in question consists of an authoritative state-court interpretation of two provisions of the California Civil Code. The first provision makes unlawful all contracts “which have for their object, directly or in-directly, to exempt anyone from responsibility for his own … violation of law.” Cal. Civ. Code Ann. §1668 (West 1985). The second provision authorizes courts to “limit the application of any unconscionable clause” in a contract so “as to avoid any unconscionable result.” §1670.5(a).

The specific rule of state law in question consists of the California Supreme Court’s application of these principles to hold that “some” (but not “all”) “class action waivers” in consumer contracts are exculpatory and unconscionable under California “law.” Discover Bank v. Superior Ct ., 36 Cal. 4th 148, 160, 162, 113 P. 3d 1100, 1108, 1110 (2005). In particular, in Discover Bank the California Supreme Court stated that, when a class-action waiver

“is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then … the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ ” Id. , at 162–163, 113 P. 3d, at 1110.

In such a circumstance, the “waivers are unconscionable under California law and should not be enforced.” Id. , at 163, 113 P. 3d, at 1110.

The Discover Bank rule does not create a “blanket policy in California against class action waivers in the consumer context.” Provencher v. Dell, Inc. , 409 F. Supp. 2d 1196, 1201 (CD Cal. 2006). Instead, it represents the “appli-cation of a more general [unconscionability] principle.” Gentry v. Superior Ct ., 42 Cal. 4th 443, 457, 165 P. 3d 556, 564 (2007). Courts applying California law have enforced class-action waivers where they satisfy general unconscionability standards. See, e.g., Walnut Producers of Cal. v. Diamond Foods, Inc. , 187 Cal. App. 4th 634, 647–650, 114 Cal. Rptr. 3d 449, 459–462 (2010); Arguelles-Romero v. Superior Ct ., 184 Cal. App. 4th 825, 843–845, 109 Cal. Rptr. 3d 289, 305–307 (2010); Smith v. Americredit Financial Servs ., Inc. , No. 09cv1076, 2009 WL 4895280 (SD Cal., Dec. 11, 2009); cf. Provencher , supra , at 1201 (considering Discover Bank in choice-of-law inquiry). And even when they fail, the parties remain free to devise other dispute mechanisms, including informal mechanisms, that, in con-text, will not prove unconscionable. See Volt Informa-<linebreak>tion Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 479 (1989) .



The Discover Bank rule is consistent with the federal Act’s language. It “applies equally to class action litigation waivers in contracts without arbitration agreements as it does to class arbitration waivers in contracts with such agreements.” 36 Cal. 4th, at 165–166, 113 P. 3d, at 1112. Linguistically speaking, it falls directly within the scope of the Act’s exception permitting courts to refuse to enforce arbitration agreements on grounds that exist “for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). The majority agrees. Ante , at 9.


The Discover Bank rule is also consistent with the basic “purpose behind” the Act. Dean Witter Reynolds Inc. v. Byrd , 470 U. S. 213, 219 (1985) . We have described that purpose as one of “ensur[ing] judicial enforcement” of arbitration agreements. Ibid . ; see also Marine Transit Corp. v. Dreyfus , 284 U. S. 263 , n. 2 (1932) (“ ‘The purpose of this bill is to make valid and enforcible agreements for arbitration’ ” (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924); emphasis added)); 65 Cong. Rec. 1931 (1924) (“It creates no new legislation, grants no new rights, except a remedy to enforce an agreement in commercial contracts and in admiralty contracts”). As is well known, prior to the federal Act, many courts expressed hostility to arbitration, for example by refusing to order specific performance of agreements to arbitrate. See S. Rep. No. 536, 68th Cong., 1st Sess., 2 (1924). The Act sought to eliminate that hostility by placing agreements to arbitrate “ ‘ upon the same footing as other contracts .’ ” Scherk v. Alberto-Culver Co. , 417 U. S. 506, 511 (1974) (quoting H. R. Rep. No. 96, at 2; emphasis added).

Congress was fully aware that arbitration could provide procedural and cost advantages. The House Report emphasized the “appropriate[ness]” of making arbitration agreements enforceable “at this time when there is so much agitation against the costliness and delays of litigation.” Id., at 2. And this Court has acknowledged that parties may enter into arbitration agreements in order to expedite the resolution of disputes. See Preston v. Ferrer , 552 U. S. 346, 357 (2008) (discussing “prime objective of an agreement to arbitrate”). See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U. S. 614, 628 (1985) .

But we have also cautioned against thinking that Congress’ primary objective was to guarantee these particular procedural advantages. Rather, that primary objective was to secure the “enforcement” of agreements to arbitrate. Dean Witter , 470 U. S., at 221. See also id. , at 219 (we “reject the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims”); id. , at 219, 217–218 (“[T]he intent of Congress” requires us to apply the terms of the Act without regard to whether the result would be “possibly inefficient”); cf. id. , at 220 (acknowledging that “expedited resolution of disputes” might lead parties to prefer arbitration). The relevant Senate Report points to the Act’s basic purpose when it says that “[t]he purpose of the [Act] is clearly set forth in section 2 ,” S. Rep. No. 536, at 2 (emphasis added), namely, the section that says that an arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2.

Thus, insofar as we seek to implement Congress’ intent, we should think more than twice before invalidating a state law that does just what §2 requires, namely, puts agreements to arbitrate and agreements to litigate “upon the same footing.”


The majority’s contrary view (that Discover Bank stands as an “obstacle” to the accomplishment of the federal law’s objective, ante , at 9–18) rests primarily upon its claims that the Discover Bank rule increases the complexity of arbitration procedures, thereby discouraging parties from entering into arbitration agreements, and to that extent discriminating in practice against arbitration. These claims are not well founded.

For one thing, a state rule of law that would sometimes set aside as unconscionable a contract term that forbids class arbitration is not (as the majority claims) like a rule that would require “ultimate disposition by a jury” or “judicially monitored discovery” or use of “the Federal Rules of Evidence.” Ante , at 8, 9. Unlike the majority’s examples, class arbitration is consistent with the use of arbitration. It is a form of arbitration that is well known in California and followed elsewhere. See, e.g., Keating v. Superior Ct ., 167 Cal. Rptr. 481, 492 (App. 1980) (officially depublished); American Arbitration Association (AAA), Supplementary Rules for Class Arbitrations (2003), (as visited Apr. 25, 2011, and available in Clerk of Court’s case file); JAMS, The Resolution Experts, Class Action Procedures (2009). Indeed, the AAA has told us that it has found class ar-bitration to be “a fair, balanced, and efficient means of resolving class disputes.” Brief for AAA as Amicus Curiae in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , O. T. 2009, No. 08–1198, p. 25 (hereinafter AAA Amicus Brief). And unlike the majority’s examples, the Discover Bank rule imposes equivalent limitations on litigation; hence it cannot fairly be characterized as a targeted attack on arbitration.

Where does the majority get its contrary idea—that individual, rather than class, arbitration is a “fundamental attribut[e]” of arbitration? Ante, at 9. The majority does not explain. And it is unlikely to be able to trace its present view to the history of the arbitration statute itself.

When Congress enacted the Act, arbitration procedures had not yet been fully developed. Insofar as Congress considered detailed forms of arbitration at all, it may well have thought that arbitration would be used primarily where merchants sought to resolve disputes of fact, not law, under the customs of their industries, where the parties possessed roughly equivalent bargaining power. See Mitsubishi Motors , supra , at 646 (Stevens, J., dissenting); Joint Hearings on S. 1005 and H. R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 15 (1924); Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9–10 (1923); Dept. of Commerce, Secretary Hoover Favors Arbitration—Press Release (Dec. 28, 1925), Herbert Hoover Papers—Articles, Addresses, and Public Statements File—No. 536, p. 2 (Herbert Hoover Presidential Library); Cohen & Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 265, 281 (1926); AAA, Year Book on Commercial Arbitration in the United States (1927). This last mentioned feature of the history—roughly equivalent bargaining power—suggests, if anything, that California’s statute is consistent with, and indeed may help to further, the objectives that Congress had in mind.

Regardless, if neither the history nor present practice suggests that class arbitration is fundamentally incompatible with arbitration itself, then on what basis can the majority hold California’s law pre-empted?

For another thing, the majority’s argument that the Discover Bank rule will discourage arbitration rests critically upon the wrong comparison. The majority compares the complexity of class arbitration with that of bilateral arbitration. See ante , at 14. And it finds the former more complex. See ibid . But, if incentives are at issue, the relevant comparison is not “arbitration with arbitration” but a comparison between class arbitration and judicial class actions. After all, in respect to the relevant set of contracts, the Discover Bank rule similarly and equally sets aside clauses that forbid class procedures—whether arbitration procedures or ordinary judicial procedures are at issue.

Why would a typical defendant (say, a business) prefer a judicial class action to class arbitration? AAA statistics “suggest that class arbitration proceedings take more time than the average commercial arbitration, but may take less time than the average class action in court.” AAA Amicus Brief 24 (emphasis added). Data from California courts confirm that class arbitrations can take considerably less time than in-court proceedings in which class certification is sought. Compare ante , at 14 (providing statistics for class arbitration), with Judicial Council of California, Administrative Office of the Courts, Class Certification in California: Second Interim Report from the Study of California Class Action Litigation 18 (2010) (providing statistics for class-action litigation in California courts). And a single class proceeding is surely more efficient than thousands of separate proceedings for identical claims. Thus, if speedy resolution of disputes were all that mattered, then the Discover Bank rule would reinforce, not obstruct, that objective of the Act.

The majority’s related claim that the Discover Bank<linebreak> rule will discourage the use of arbitration because “[a]rbitration is poorly suited to … higher stakes” lacks empirical support. Ante , at 16. Indeed, the majority provides no convincing reason to believe that parties are unwilling to submit high-stake disputes to arbitration. And there are numerous counterexamples. Loftus, Rivals Resolve Dispute Over Drug, Wall Street Journal, Apr. 16, 2011, p. B2 (discussing $500 million settlement in dispute submitted to arbitration); Ziobro, Kraft Seeks Arbitration In Fight With Starbucks Over Distribution, Wall Street Journal, Nov. 30, 2010, p. B10 (describing initiation of an arbitration in which the payout “could be higher” than $1.5 billion); Markoff, Software Arbitration Ruling Gives I.B.M. $833 Million From Fujitsu, N. Y. Times, Nov. 30, 1988, p. A1 (describing both companies as “pleased with the ruling” resolving a licensing dispute).

Further, even though contract defenses, e.g. , duress and unconscionability, slow down the dispute resolution process, federal arbitration law normally leaves such matters to the States. Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ___, ___ (2010) (slip op., at 4) (arbitration agreements “may be invalidated by ‘generally applicable contract defenses’ ” (quoting Doctor’s Associates, Inc. v. Casarotto , 517 U. S. 681, 687 (1996) )). A provision in a contract of adhesion (for example, requiring a consumer to decide very quickly whether to pursue a claim) might increase the speed and efficiency of arbitrating a dispute, but the State can forbid it. See, e.g., Hayes v. Oakridge Home , 122 Ohio St. 3d 63, 67, 2009–Ohio–2054, ¶19, 908 N. E. 2d 408, 412 (“Unconscionability is a ground for revocation of an arbitration agreement”); In re Poly-America, L. P. , 262 S. W. 3d 337, 348 (Tex. 2008) (“Unconscionable contracts, however—whether relating to arbitration or not—are unenforceable under Texas law”). The Discover Bank rule amounts to a variation on this theme. California is free to define unconscionability as it sees fit, and its common law is of no federal concern so long as the State does not adopt a special rule that disfavors arbitration. Cf. Doctor’s As-sociates , supra , at 687. See also ante , at 4, n. ( Thomas, J. , concurring) (suggesting that, under certain circumstances, California might remain free to apply its unconscionability doctrine).

Because California applies the same legal principles to address the unconscionability of class arbitration waivers as it does to address the unconscionability of any other contractual provision, the merits of class proceedings should not factor into our decision. If California had applied its law of duress to void an arbitration agreement, would it matter if the procedures in the coerced agreement were efficient?

Regardless, the majority highlights the disadvantages of class arbitrations, as it sees them. See ante , at 15–16 (referring to the “greatly increase[d] risks to defendants”; the “chance of a devastating loss” pressuring defendants “into settling questionable claims”). But class proceedings have countervailing advantages. In general agreements that forbid the consolidation of claims can lead small-dollar claimants to abandon their claims rather than to litigate. I suspect that it is true even here, for as the Court of Appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concepcions’ arbitration worthwhile) simply by paying the claim’s face value, such that “the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.” Laster v. AT&T Mobility LLC, 584 F. 3d 849, 855, 856 (CA9 2009).

What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? See, e.g. , Carnegie v. Household Int’l, Inc. , 376 F. 3d 656, 661 (CA7 2004) (“The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30”). In California’s perfectly rational view, nonclass arbitration over such sums will also sometimes have the effect of depriving claimants of their claims (say, for example, where claiming the $30.22 were to involve filling out many forms that require technical legal knowledge or waiting at great length while a call is placed on hold). Discover Bank sets forth circumstances in which the California courts believe that the terms of consumer contracts can be manipulated to insulate an agreement’s author from liability for its own frauds by “deliberately cheat[ing] large numbers of consumers out of individually small sums of money.” 36 Cal. 4th, at 162–163, 113 P. 3d, at 1110. Why is this kind of decision—weighing the pros and cons of all class proceedings alike—not California’s to make?

Finally, the majority can find no meaningful support for its views in this Court’s precedent. The federal Act has been in force for nearly a century. We have decided dozens of cases about its requirements. We have reached results that authorize complex arbitration procedures. E.g., Mitsubishi Motors , 473 U. S., at 629 (antitrust claims arising in international transaction are arbitrable). We have upheld nondiscriminatory state laws that slow down arbitration proceedings. E.g. , Volt Information Sciences , 489 U. S., at 477–479 (California law staying arbitration proceedings until completion of related litigation is not pre-empted). But we have not, to my knowledge, applied the Act to strike down a state statute that treats arbitrations on par with judicial and administrative proceedings. Cf. Preston , 552 U. S., at 355–356 (Act pre-empts state law that vests primary jurisdiction in state administrative board).

At the same time, we have repeatedly referred to the Act’s basic objective as assuring that courts treat arbitration agreements “like all other contracts.” Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 447 (2006) . See also, e.g., Vaden v. Discover Bank , 556 U. S. ___, ___ (2009); (slip op., at 13); Doctor’s Associates, supra, at 687; Allied-Bruce Terminix Cos. v. Dobson , 513 U. S. 265, 281 (1995) ; Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U. S. 477, 483–484 (1989) ; Perry v. Thomas , 482 U. S. 483, 492–493, n. 9 (1987) ; Mitsubishi<linebreak>Motors , supra , at 627. And we have recognized that “[t]o immunize an arbitration agreement from judicial challenge” on grounds applicable to all other contracts “would be to elevate it over other forms of contract.” Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U. S. 395 , n. 12 (1967); see also Marchant v. Mead-Morrison Mfg. Co. , 252 N. Y. 284, 299, 169 N. E. 386, 391 (1929) (Cardozo, C. J.) (“Courts are not at liberty to shirk the process of [contractual] construction under the empire of a belief that arbitration is beneficent any more than they may shirk it if their belief happens to be the contrary”); Cohen & Dayton, 12 Va. L. Rev., at 276 (the Act “is no infringement upon the right of each State to decide for itself what contracts shall or shall not exist under its laws”).

These cases do not concern the merits and demerits of class actions; they concern equal treatment of arbitration contracts and other contracts. Since it is the latter question that is at issue here, I am not surprised that the majority can find no meaningful precedent supporting its decision.


By using the words “save upon such grounds as exist at law or in equity for the revocation of any contract,” Congress retained for the States an important role incident to agreements to arbitrate. 9 U. S. C. §2. Through those words Congress reiterated a basic federal idea that has long informed the nature of this Nation’s laws. We have often expressed this idea in opinions that set forth presumptions. See, e.g., Medtronic, Inc. v. Lohr , 518 U. S. 470, 485 (1996) (“[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action”). But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach.

With respect, I dissent.