The End of Class Actions?

40 Pages Posted: 12 Mar 2015 Last revised: 2 Apr 2015

Brian T. Fitzpatrick

Vanderbilt Law School

Date Written: March 10, 2015

Abstract

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court’s decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to class action waivers — and that one big category of class action plaintiffs (shareholders) remain insulated from Concepcion and American Express altogether — I still see every reason to believe that businesses will eventually be able to eliminate virtually all class actions that are brought against them, including those brought by shareholders.

Keywords: class actions, arbitration, class action waivers, Supreme Court, securities fraud

Suggested Citation

Fitzpatrick, Brian T., The End of Class Actions? (March 10, 2015). Arizona Law Review, Vol. 57, No. 1, 2015; Vanderbilt Public Law Research Paper No. 15-2; Vanderbilt Law and Economics Research Paper No. 15-5. Available at SSRN: https://ssrn.com/abstract=2576304

Brian T. Fitzpatrick (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-4032 (Phone)

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