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

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. In Wal-Mart, the Court held that under Rule 23, a class action case for intentional employment discrimination could not proceed when the allegedly discriminatory decisions were made by individual supervisors at different stores. The Court’s majority rejected the lower courts’ determination that Wal-Mart’s nationally uniform personnel policies could be challenged on a class basis, instead holding that the discrimination was the result of individual supervisors’ exercise of discretion and needed to be proven on an individual basis. In AT&T, the Court further limited class actions by upholding the ability of companies to include waivers of the right to proceed as a class action in a form arbitration agreement. 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.