1. U.S. Courts, Judicial Facts and
Figures 2013, Pub. Table No.
4. 8, Sept. 30, 2013.
2. AT&T Mobility v. Concepción,
131 S. Ct. 1740 (2011).
3. Id. at 1742.
4. Am. Ex. Co. v. Italian Colors
Rest., 133 S. Ct. 2304, 2307
(2013) (“No contrary congressional command requires us to
reject the wavier of class arbitration here”). See also Alison
Frankel, How SCOTUS’s Amex
Ruling May Help Businesses
Evade Class Actions, REUTERS,
Aug. 22, 2013.
5. D.R. Horton, Inc. v.
NLRB, 737 F.3d 344,
357-360 (5th Cir. 2013)
(“The use of class action procedures is not a substantive
right … while a class action
may lead to certain types of
remedies or relief, a class
action is not itself a remedy”).
6. Murphy Oil USA, Inc. v.
NLRB, No. 14-60800 (5th
7. 577 U.S. __ (2015).
8. See generally, Peter B.
Rutledge & Christopher R.
Drahozal, Sticky Arbitration
Clauses? The Use of Arbitration
Clauses After Concepcion and
Amex,” VAND. L. REV. 67 ( 4):
955-1013, May 2014.
9. Consumer Financial Protection
Bureau, Arbitration Study:
Report to Congress, pursuant to
Dodd–Frank Wall Street Reform
and Consumer Protection Act §
1028(a), Mar. 2015.
10. Karen Weise, Consumer
Protection Faces a ‘Tsunami’
in Court, BLOOMBERG BUS.,
Apr. 27, 2012.
11. See Jean Sternlight, Tsunami:
AT&T Mobility LLC v.
Concepcion Impedes Access to
Justice, OR. L. REV. 90 ( 3):
12. Gillette v. Uber Techs., Inc.,
2015 U.S. Dist. 3, 14-cv-
05241-EMC (Dkt. 16) (N.D.
Cal. June 9, 2015).
13. Id. at 24-26.
14. McLellan et al. v. FitBit, Inc.,
3:16-cv-00036-VC (Dkt. 1).
15. Consumer Financial Protection
Bureau, CFPB Considers
Proposal to Ban Arbitration
Clauses That Allow Companies
to Avoid Accountability to Their
Customers, CFPB NEWSROOM,
Oct. 7, 2015. See also Rob
Berger, The CFPB Declares
War on Arbitration, FORBES,
Oct. 18, 2015.
16. Lewis v. Epic Systems Corp.,
Case No. 15-2997.
17. American Arbitration
Association, Drafting Dispute
Resolution Clauses: A Practical
Guide, Oct. 1, 2013.
18. Hooters of America, Inc. v.
Philips, 173 F.3d 933,
938-939 (4th Cir. 1999).
19. Id. See also David S. Baffa,
John L. Collins, Gerald L.
Maatman, Jr., Guidance for
Agreements with Class and
Collective Action Waivers, EMP.
REL. L. J. (Winter 2013).
20. Armendariz v. Found. Health
Psychcare Serv., Inc., 24 Cal.
4th 83 (2000). See also John
M. Townsend, Drafting
Arbitration Clauses: Avoiding
the 7 Deadly Sins, DISP. RESOL.
J., Vol. 58, No. 1 (2003).
21. See RICHARD C. WYDICK, PLAIN
ENGLISH FOR LAWYERS (5th ed.,
July 30, 2005).
22. See, e.g., Uber Techs., Inc., 2015
U.S. Dist. 3, 14-cv-05241-
EMC (Dkt. 16) (N.D. Cal.
June 9, 2015) (“The first [and
often final] step in determining
validity and enforceability … is
to decide whether the language
of the clause, read in context
with other relevant contract
provisions, unambiguously calls
for the arbitration of gateway
issues such as arbitrability. This
is because the default rule is
that courts adjudicate arbitra-
bility: ‘Unless the parties clearly
and unmistakably provide
otherwise, the question of
whether the parties agreed to
arbitrate is to be decided by
the court, not the arbitrator.’”)
23. For example in 2010, Arizona
adopted the Revised Uniform
Arbitration Act (the RUAA),
which was codified in A.R.S. §
12-3001 et seq.
24. See Concepción, 131 S. Ct. at
25. Uber Techs., Inc., 2015 U.S.
Dist. 3, 14-cv-05241-EMC
(“These two clauses in the
2013 Agreement are facially
inconsistent with each other
and thus, for this reason alone,
the heightened ‘clear and
unmistakable’ test is not wmet
with respect to” the Uber
ipate, some of these
statutes conform to the
FAA, while others do
not. However, if the
parties want to avoid any conflicts of law
disputes, their arbitration clause need to define that the FAA rules and regulations will
govern any dispute between the parties,
which will preempt any inconsistent state
Likewise, it is important to avoid any
substantive law ambiguity or conflict in the
body of the contract. This issue was recently
raised in the Uber case, where the court criticized the inconsistent and conflicting severability, delegation, and governing venue and
jurisdiction clauses. 25
The Arbitration Clause Should
Contain “Entry of Judgment”
and Severability Language.
If the parties to the contract desire that the
results of the arbitration be final, binding
and enforceable, it is essential that the ar-
bitration clause contain language that the
judgment (or ruling) of the arbitrator can
be entered in court. A common phrase that
is used is, “Judgment upon the award ren-
dered by the arbitrators can be entered in
any court of competent jurisdiction.”
Finally, as with any contract, it is import-
ant to include the appropriate severability
language—particularly when the clause in-
cludes a class-action waiver. This way, in the
event any element of the clause is found to
be unlawful or unenforceable, that portion
of the clause may be severed without rup-
turing the remaining intention of the parties
As more businesses pivot their corporate
contracts toward alternative dispute resolution and binding mandatory arbitration, the
drafting attorney can add substantial value
to their client by understanding the pressure
points of these critical clauses.
Fairness in the actual arbitration process is
a paramount consideration when creating
a binding mandatory arbitration clause.
Mandatory Arbitration After Concepción