Legal experts split over class-action waivers
Class-action waivers minimize the risk of car-buyer class actions that are costly for dealerships to defend. But are they enforceable?
Dealership attorneys Tony Molino and Steven Berardino of Molino & Berardino in Los Angeles say the U.S. Supreme Court's 2011 decision in AT&T Mobility v. Concepcion should settle the issue -- unless Congress enacts legislation to overrule the decision.
In Concepcion, the court ruled that the Federal Arbitration Act trumps state laws prohibiting class-action waivers in pre-dispute arbitration clauses.
"We are counseling our dealer clients that Concepcion controls," Berardino says. "They could not make it more clear that class-action waivers in these consumer contracts are generally enforceable."
But not all lower court judges in California are convinced. Two recent California Court of Appeal cases illustrate the dilemma.
In one, a three-judge panel ordered a consumer and her co-signer to arbitrate their financing and other claims against West Covina Toyota, rejecting the plaintiffs' argument that a class-action waiver made the arbitration agreement unenforceable and a violation of public policy.
But in a separate case, a different panel ruled that Subaru of Santa Monica can't force arbitration of a customer's individual and class-action claims because the arbitration provision was, in fact, unenforceable and a violation of public policy.
There's also county-by-county variation among trial court judges in the state on whether to grant dealerships' motions to compel arbitration, Molino and Berardino say.
And that's one of the problems with the Concepcion decision, Maureen Arellano Weston, a law professor at California's Pepperdine University, pointed out to Automotive News.
"The Supreme Court has interpreted the Federal Arbitration Act so broadly that it's taken over the states' ability to govern contracts and the procedural mechanisms we have through class actions," she says.
She says some state courts still try to decide whether the arbitration agreement is unfair by looking at the specific facts of a transaction.
Another problem with the Concepcion ruling, she says, is that it could "wipe out collective actions altogether."
"That's the Molotov cocktail," she says. "Class arbitration can work."
Weston's solution? The federal government needs to settle the matter.
In a Kansas Law Review article in November 2011, she wrote: "It is appropriate and necessary for Congress to respond by simply amending the FAA to restrict class waivers."
But Berardino calls possible congressional action "a political question, not a legal one," adding that the Consumer Financial Protection Bureau and the plaintiffs' bar likely would lobby for such legislation.
"We have to be able to arbitrate these disputes," Berardino says, especially in light of budget cuts for the Los Angeles County courts.
He adds: "You can go to trial in three to five years or you can go to arbitration in six months."
The time element may be less critical in New York, where F&I-related class-action claims against dealerships don't "seem to be prevalent in this neck of the woods," according to dealership attorney Leonard Bellavia of Bellavia Blatt Andron & Crossett in New York.
Still, he sees the benefits of arbitration.
Arbitration is less costly for dealerships because it's faster than litigation and generally doesn't allow for punitive damages, recovery of attorney fees or jury trials, Bellavia says.
And exclusion of class claims means that individual disputes about small amounts of money are not worth pursuing by a plaintiff's lawyer who is being paid on either an hourly or contingent fee basis.
The likelihood of reaching a settlement is much greater in arbitration because there are no attorney fees," he says.
Yet Bellavia acknowledges: "As a practitioner, I'm not a big fan of arbitration. I find it rather costly although it's designed to be less expensive."
But that doesn't change the bottom line.
"In advising dealers, the single purpose of guarding against consumer class-action cases is enough to justify it, despite its other drawbacks," Bellavia says.
"Class actions can be extremely expensive to defend and inevitably they get settled," Bellavia says. "Big corporations can budget for class-action settlements. Dealers can't."
You can reach Eric Freedman at firstname.lastname@example.org.