Class arbitration in the United States dates back more than 30 years. 1But it did not become common until after the United States Supreme Court’s 2003 decision in Green Tree Financial Corp. v Bazzle, 2which many construed as approving of the practice. After Bazzle, the American Arbitration Association (AAA) promulgated rules governing class arbitration proceedings, 3and the number of class arbitration cases filed with the AAA peaked at 57 in 2006. In recent years, however, the Supreme Court has reined in the use of class arbitration, both by enhancing the enforceability of contractual waivers of class arbitration and by clarifying the standard for construing an arbitration clause that does not address the availability of class arbitration.

This paper provides an overview of class arbitration in the United States. Part 1 sets out background on the practice, including a description of the Supreme Court’s decision in Bazzle. Part 2 discusses the Court’s subsequent class arbitration decisions, as well as noting a recent regulatory development by the Consumer Financial Protection Bureau. Finally, Part 3 examines how parties have responded to the Supreme Court’s developing class arbitration jurisprudence. It looks at changes both in the AAA’s class arbitration docket and in the contracting practices of franchisors and consumer financial services companies in the United States following the Court’s class arbitration decisions.

1. BACKGROUND

Class arbitration became common in the United States not because of a desire to have arbitrations resolved on a class basis but because of a desire not to have court cases resolved on a class basis. In the late 1990s, banks and other businesses began using arbitration clauses in their standard form contracts as a way to reduce the risk of class action litigation. 4Consumers and others whose contracts included arbitration clauses could not be a party to a class action in court — they had agreed to arbitrate all disputes instead. As a result, by using arbitration clauses in their contracts, businesses could reduce the risk of being subject to class actions in court.

Only some, but not all, of the contracts addressed the availability of class relief in arbitration. For those contracts that did not do so, plaintiffs’ lawyers began seeking to have arbitrations administered on a class basis. Although federal courts generally refused to order arbitrations to proceed on a class basis, some state courts were more willing to order class arbitration. 5

The issue reached the US Supreme Court in Bazzle. 6In Bazzle, the South Carolina Supreme Court had ordered the parties to proceed to class arbitration under an arbitration clause that did not address class arbitration. Before the US Supreme Court, the result was a badly splintered decision. The plurality of the Court (four Justices in an opinion authored by Justice Breyer) vacated the decision below, deciding that the arbitrator, and not a court, must determine whether an arbitration clause forbids class arbitration. Justice Stevens would have affirmed the South Carolina Supreme Court’s decision as correct as a matter of law, but concurred in the judgment to provide a fifth vote for the outcome. Chief Justice Rehnquist, joined by two other Justices, dissented arguing that the issue was one for the court to decide and that the South Carolina Supreme Court’s decision was inconsistent with the parties’ arbitration agreement. Justice Thomas dissented, reiterating his view that the Federal Arbitration Act (FAA) does not apply in state court.

As stated by John Townsend, following the decision in Bazzle the AAA "realized that the Supreme Court had opened the door for arbitrators to certify class proceedings without specific judicial direction," and promulgated its class arbitration rules as noted above. 7The resulting growth of class arbitration led directly to the Supreme Court cases described in the next section.

2. LEGAL DEVELOPMENTS UNDER US LAW

This section summarizes legal developments in the United States subsequent to the US Supreme Court’s decision in Bazzle, focusing primarily but not exclusively on decisions by the Supreme Court

a) US Supreme Court Cases

Fundamentally, the availability of class arbitration is a matter of contract. Parties might expressly preclude any dispute from being resolved on a class basis, expressly agree that any dispute will be arbitrated on a class basis, or might not address the issue in their arbitration agreement. This section traces developments in how courts deal with these varying types of agreements under US law.

i. Agreements Expressly Precluding Class Arbitration

Businesses responded to the growth of class arbitration after Bazzle by increasingly including provisions waiving the availability of class arbitration in their arbitration clauses. The enforceability of those class arbitration waivers was challenged on two grounds. First, parties challenged class waivers as unconscionable under state contract law. Second, parties challenged class waivers as invalid because they precluded the effective vindication of federal statutory rights.

The Supreme Court sharply limited the use of unconscionability doctrine to invalidate arbitration clauses with class waivers in AT&T Mobility LLC v Concepcion. 8In Concepcion, the Court reversed a Ninth Circuit decision that had held an arbitration clause with a class waiver unconscionable under California law, finding California law preempted by the FAA. The Court identified a number of ways in which class arbitration differs from bilateral arbitration: it "sacrifices the principal advantage of arbitration — its informality — and makes the process slower, more costly, and more likely to generate procedural morass than final judgment"; it "requires procedural formality"; and it "greatly increases risks to defendants." 9Because of these differences, the Court concluded that "[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." 10

Thereafter, the Supreme Court also limited the use of the effective vindication doctrine to invalidate arbitration clauses with class waivers in American Express Co. v Italian Colors Restaurant. 11The plaintiffs in Italian Colors challenged the enforceability of the arbitration agreement (with class waiver) in their contract with American Express on the ground that litigating their antitrust claims would be too expensive without the ability to aggregate each (relatively small) individual claim in a class action. As a result, according to the plaintiffs, the arbitration clause precluded them from effectively vindicating their federal statutory rights under the Sherman Act. The Supreme Court rejected the claim, reasoning in important part that because class actions were not available when the Sherman Act was enacted, the lack of class relief could not deny plaintiffs the ability to effectively vindicate their federal statutory rights. 12Although the holding in Italian Colors was narrow, it has been applied more broadly such that at present arbitration clauses with class waivers are generally enforceable under the FAA.

ii. Agreements Expressly Authorizing Class Arbitration

In the United States, pre-dispute agreements expressly permitting class arbitration are rare to the point of being nonexistent. I have seen two agreements from affiliated franchisors that expressly authorized class arbitration on one narrow issue, but that is all. 13More common are postdispute agreements in which parties stipulate that the arbitration can proceed on a class basis, but those agreements may well reflect the parties’ expectation of how arbitrators would have interpreted their arbitration agreement rather than any agreed preference for class arbitration.

Some have suggested that the Supreme Court’s decision in Concepcion might cast doubt on the enforceability of agreements expressly providing for class arbitration. 14Those suggestions are really criticisms of the Court’s analysis, I think, rather than reflecting any true likelihood that an agreement expressly authorizing class arbitration would be held unenforceable under the FAA. Indeed, the Court in Concepcion emphasized the non-consensual nature of the class arbitration resulting from the Ninth Circuit’s decision (referring, for example, to procedures states "superimpose on arbitration"), while stating that the FAA "requires courts to honor parties’ expectations." 15As such, Concepcion likely would not preclude courts from enforcing an agreement expressly authorizing class arbitration (as unlikely as it is that parties would enter into such an agreement).

iii. Agreements Neither Expressly Precluding nor Authorizing Class Arbitration

The remaining set of arbitration agreements are ones that neither expressly authorize nor expressly preclude class arbitration. 16As noted above, in Bazzle a plurality of the Supreme Court held that whether such an agreement permits class arbitration is a question for the arbitrator rather than the court to decide. But because the Bazzle decision comprised only a plurality of the Court, doubt remained about the precedential value of the decision.

The Supreme Court revisited such agreements in Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp.17and Oxford Health Plans LLC v Sutter.18In Stolt- Nielsen, the Court vacated an award construing an arbitration agreement as permitting class arbitration when the parties had stipulated that the agreement was ‘silent’ on the practice. While the outcome in Stolt-Nielsen — adopting a default rule that arbitration clauses in commercial shipping contracts do not authorize class arbitration — may be sensible, the decision itself is problematic in a number of respects, most of which are not relevant to this paper. 19The key points in the decision for my purposes here are twofold. First, the Court cast serious doubt on (if not rejected outright) any precedential value of the plurality opinion in Bazzle, although it did not itself resolve the ‘who decides’ question because the parties had agreed postdispute to have the arbitrators decide. 20Second, the Court held that the standard for deciding the issue is "whether the parties agreed to authorize class arbitration," and on the facts of the case, "where the parties stipulated that there was ‘no agreement’ on this question, it follows that the parties cannot be compelled to submit their dispute to class arbitration." 21

In Oxford Health Plans, the Court likewise did not resolve the ‘who decides’ question, again because the parties had agreed post-dispute to have the arbitrators decide. 22Unlike in Stolt-Nielsen, however, the Court in Oxford Health Plans deferred to the arbitrators, who had construed the arbitration agreement as authorizing class arbitration. The Court limited Stolt-Nielsen to cases in which an award "lack[s] any contractual basis for ordering class procedures," and made clear that when a court decides whether to vacate an arbitration award, "the question for a judge is not whether the arbitrator construed the parties’ contract correctly, but whether he construed it at all." 23

Currently, courts are divided on whether the arbitrator or the court decides whether an arbitration agreement authorizes class arbitration. Some courts continue to follow the plurality opinion in Bazzle and hold that it is an issue for the arbitrator to decide. 24Other courts follow what they see as suggestions from the more recent Supreme Court decisions that the issue is one for the court to decide. 25The division likely will remain until the Supreme Court steps in to resolve the issue.

b) Regulatory Note

On May 5, 2016, the Consumer Financial Protection Bureau (CFPB) issued a notice of proposed rulemaking setting out a proposed rule regulating the use of predispute arbitration clauses in consumer financial services contracts. 26The proposed rule followed upon the CFPB’s release in March 2015 of an extensive study of the use of arbitration to resolve consumer financial services disputes. 27Having completed the study, the CFPB has the authority to "prohibit or impose conditions or limitations on the use" of predispute arbitration agreements in a broad range of consumer financial services contracts, "if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers." 28

The CFPB’s proposed rule consists of two elements. First, it "would prohibit covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action with respect to the covered consumer financial product or service." 29Second, it "would require a covered provider that is involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau," which would monitor those proceedings and possibly make the records public. 30

The proposed rule still must go through a notice-and-comment review process before it becomes final. Nonetheless, one law firm has advised financial services clients that they should "strongly consider" including arbitration clauses in their contracts now so that the clauses will be grandfathered if and when the CFPB issues a final rule on the subject. 31

3. RESPONSES TO LEGAL DEVELOPMENTS

This section tracks how parties have responded to the changing legal landscape governing class arbitration in the US It first looks at changes in the AAA’s class arbitration docket, and then examines changes in contracting practices based on data from US franchise and consumer financial services agreements.

a) AAA Class Arbitartions

Unlike its commercial arbitration rules, the AAA’s class arbitration rules provide for the arbitration demand and any awards to be made publicly available on the AAA web page. 32Although case information on the AAA web page has been unreliable at times, it nonetheless provides some insights into AAA cases and practice. In addition, the AAA itself has on occasion released information about its class arbitration docket.

Figure 1 provides information on AAA class arbitration filings over time. 33Filings peaked (at 57) in 2006, and (generally) declined until 2013, when only 25 class arbitrations were filed. But in 2014 filings jumped back up to 43, with 23 filings through early October 2015. 34

Although somewhat dated, data on the types of parties filing class arbitrations come from the AAA’s amicus brief in Stolt-Nielsen. 35While most of the claims seeking class arbitration were brought by consumers (106, or 37%) or employees (96, or 34%), a surprising number involved business claimants (81, or 28%), typically small businesses. Perhaps that number is not so surprising given that three of the four most recent Supreme Court cases dealing with class arbitration also involved business claimants: Stolt-Nielsen (shippers), Italian Colors (businesses that accept credit cards), and Sutter (doctors). The upturn in class arbitration filings in 2014 appears largely due to a growth in the number of employees (often from California, because of particular California causes of action) filing class arbitrations. Of the 43 filings in 2014, at least 26 were by employees, including 16 by employees in California.

The AAA does not accept filings under an arbitration clause including a class arbitration waiver, unless a court ordered the case to arbitration. 36As a result, many of the class arbitrations were filed based on arbitration clauses that did not address class arbitration. Prior to Stolt-Nielsen, arbitrators overwhelmingly construed such clauses as permitting class arbitration (the standard under the AAA class arbitration rules): only 5% of clause construction awards found that the clause did not permit class arbitration. 37Since Stolt-Nielsen, in which the Supreme Court held that arbitration clauses must authorize (rather than just permit) class arbitration, that proportion has increased dramatically. Of the cases filed from 2012-2015 in which arbitrators have issued clause construction awards, 21 of 39 (or 54%) construed the clause as not authorizing class arbitration. 38

b) Contracting Practices

Some commentators have argued that, in response to Concepcion and Italian Colors, essentially all businesses will adopt arbitration clauses with class arbitration waivers. Brian Fitzpatrick, for example, has contended:

[I]n many cases, these waivers are tantamount to insulating businesses altogether from liability for the small-stakes injuries they cause. Why wouldn’t every business want such insulation? I think every business would. 39

Similarly, Myriam Gilles, in a prediction that predates Concepcion and Italian Colors but that she has reiterated since, has stated:

I regard it as inevitable that firms will ultimately act in their economic best interests, and those interests dictate that virtually all companies will opt out of exposure to class action liability. Why wouldn’t they? Once the [class] waivers gain broader acceptance and recognition, it will become malpractice for corporate counsel not to include such clauses in consumer and other class-action-prone contracts. 40

And, indeed, anecdotes provide some support for this view, as press reports have identified several large software or technology companies that adopted arbitration clauses with class waivers following Concepcion. 41

The available empirical evidence, however, does not yet support such a view. Bo Rutledge and I examined changes in the use of arbitration clauses following Concepcion in two samples of franchise agreements and found that "the use of arbitration clauses in franchise agreements has increased since Concepcion, but not dramatically, and most franchisors have not switched to arbitration." 42 In a sample of 67 leading franchisors, "the use of arbitration clauses increased from 40.3% of franchisors immediately before Concepcion to 44.8% by 2013." 43 In a broader sample of franchisors, "the net use of arbitration clauses increased only slightly after Concepcion, with 62.6% of franchisors using arbitration clauses before Concepcion and 63.6% after the decision." 44

Similarly, in its study of consumer financial services arbitration, the CFPB found only a "slight upward trend" in the use of arbitration clauses in credit card agreements following Concepcion, although a somewhat larger change in the use of arbitration clauses in deposit account agreements (at least between 2012 and 2013). 45 For the credit card issuers in the CFPB’s sample every year from 2010 through 2013, "the number of issuers using arbitration clauses increased from 53 as of year-end 2010, to 54 as of year-end 2011, to 55 as of year-end 2012, to 58 as of year-end 2013." 46 The CFPB’s data on deposit account agreements was less comprehensive, but the Bureau reported an increase of seven (out of 88 in the sample) such agreements using arbitration clauses between 2012 and 2013, but no new large banks (of a more limited sample of 57) adding arbitration clauses between 2013 and 2014. 47

It is too soon to tell whether the limited move to arbitration since Concepcion will increase (because standard contract terms are sticky but will change eventually) or tail off (because parties that have not switched to arbitration prefer to have their disputes resolved in court).

4. CONCLUSION

While US law on class arbitration has been in flux, recent Supreme Court decisions have resolved many uncertainties, generally in ways unfavorable to class arbitration. The most significant remaining legal question is whether arbitrators or the court decide if an arbitration agreement that does not expressly address class arbitration nonetheless authorizes the practice. The Supreme Court’s increasing skepticism of class arbitration (and class actions) appears to have led to some decline in the frequency of class arbitration filings, although not as much as might have been expected. And, conversely, the use of arbitration clauses has increased following the Court’s decisions, although not as dramatically as some predicted.

1
Jean R. Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?, 42 Wm. & Mary L. Rev. 1, 41 n.149 (2000).

2
539 US 444 (2003).

3
Am. Arb. Ass’n, Supplementary Rules for Class Arbitration (Rules Effective Oct. 8, 2003, Fees Effective Jan. 1, 2010), https://www.adr.org/aaa/ShowPDF?url=/ cs/groups/commercial/documents/document/dgdf/mda0/~edisp/ adrstg_004129.pdf [hereinafter AAA Class Arbitration Rules].

4
Ross v American Exp. Co., 35 F. Supp. 3d 407, 414-30 (S.D.N.Y. 2014) (describing meetings during 1999-2003 of ‘Arbitration Coalition’ of financial institutions and law firms to discuss arbitration clauses and class actions), aff’d, 2015 WL 7292176 (2d Cir. Nov. 19, 2015) (summary order); see, e.g., Edward Wood Dunham, The Arbitration Clause as Class Action Shield, 16 Franchise L.J. 141, 141 (1997); Alan S. Kaplinsky & Mark J. Levin, Excuse Me, but Who’s the Predator? Banks Can Use Arbitration Clauses as a Defense, 7 Bus. L. Today, May/ June 1998, at 24, 26; J.T. Westermeir, How Arbitration Clauses Can Help Avoid Class Action Damages: Strategies for Managing Risks of Litigation, 14 Computer L. Strategist, Sept. 1997, at 1, 1.

5
Compare Iowa Grain Co. v Brown, 171 F.3d 504, 510 (7th Cir. 1999) (finding no authority to order class arbitration); Champ v Siegel Trading Co., 55 F.3d 269, 274-77 (7th Cir. 1995) (same) with Keating v Superior Court, 31 Cal. 3d 584, 609-14 (Cal. 1982) (finding authority to order class arbitration), rev’d on other grounds sub nom., Southland Corp. v Keating, 465 US 1 (1984); Bazzle v Green Tree Fin’l Corp., 569 S.E.2d 349, 359-62 (S.C. 2002) (same), vacated, 539 US 444 (2003).

6
539 US 444 (2003).

7
John M. Townsend, The Rise and Fall of Class Arbitration, in AAA Yearbook on Arbitration and the Law 395, 398, 399-401 (Ben H. Sheppard, Jr. & Stephen K. Huber eds., 23rd ed. 2011) (also describing the AAA class arbitration rules).

8
563 US 333, 351 (2011).

9
Id. at 348-50.

10
Id. at 344.

11
133 S. Ct. 2304 (2013).

12
Id. at 2311 (‘[T]he individual suit that was considered adequate to assure "effective vindication" of a federal right before adoption of class-action procedures did not suddenly become "ineffective vindication" upon their adoption.’).

13
Christopher R. Drahozal, "Unfair" Arbitration Clauses, 2001 U. Ill. L. Rev. 695, 731 & n.265.

14
Gary Born, The US Supreme Court and Class Arbitration: A Tragedy of Errors, Kluwer Arbitration Blog (July 1, 2011), http://kluwerarbitrationblog.com/ blog/2011/07/01/the-u-s-supreme-court-and-class-arbitration-a-tragedy-oferrors/.

15
Concepcion, 563 US at 351.

16
For a more detailed description, see Christopher R. Drahozal, The Supreme Court and Class Arbitration: There and Back Again, in "Contemporary Issues in International Arbitration and Mediation: The Fordham Papers" 95 (Arthur Rovine ed., 2015).

17
559 US 662 (2010).

18
133 S. Ct. 2064 (2013).

19
See Christopher R. Drahozal & Peter B. Rutledge, Contract and Procedure, 94 Marquette L. Rev. 1103, 1144-53 (2011).

20
559 US at 680.

21
Id. at 687.

22
133 S. Ct. at 2068 n.2.

23
Id. at 2069, 2071.

24
E.g., Edwards v Macy’s Inc., 2015 WL 4104718, at *11 (S.D.N.Y. June 30, 2015) (‘[I]t is clear that the issue of whether the language quoted above authorizes class-wide arbitration is for the arbitrators in the first instance, not for the court.’); Williams-Bell v Perry Johnson Registrars Inc., 2015 WL 6741819, at *6 (N.D. Ill. Jan. 8, 2015) (same); In re: A2P SMS Antitrust Litig., 2014 WL 2445756, at *12 (S.D.N.Y. May 29, 2014) (same); Lee v J.P. Morgan Chase & Co., 982 F. Supp. 2d 1109, 1113-14 (C.D. Cal. 2013) (same); see also Robinson v J & K Admin. Mgmt. Servs., Inc., 2016 WL 1077102, at *4 (5th Cir. Mar. 17, 2016) (‘[I]f parties agree to submit the issue of arbitrability to the arbitrator, then the availability of class or collective arbitration is a question for the arbitrator instead of the court.’).

25
E.g., Del Webb Communities, Inc. v Carlson, 2016 WL 1178829, at *4 (4th Cir. Mar. 28, 2016) (‘We … hold that whether an arbitration clause permits class arbitration is a gateway question of arbitrability for the court.’); Chesapeake Appalachia, LLC v Scout Petroleum, LLC, 809 F.3d 746, 753 (3d Cir. 2016) (same); Opalinski v Robert Half Int’l Inc., 761 F.3d 326, 335 (3d Cir. 2014) (same), cert. denied, 135 S. Ct. 1530 (2015); Reed Elsevier v Crockett, 734 F.3d 594, 598 (6th Cir. 2013) (same), cert. denied, 134 S. Ct. 2291 (2014); see also Claudia Pharaon, The Extent of Arbitrators’ Power to Order Class Arbitration, 31 Arb. Int’l 589, 610 (2015) (‘The Supreme Court has suggested that it will likely treat the question of the availability of class arbitration as one of arbitrability to be resolved by national judges in the future.’); Kevin P. Sack, Plurality Influence: Reed Elsevier and the Precedential Value of Bazzle on Class Arbitrability, 2014 J. Disp. Resol. 379, 393 (2014) (‘Because lower courts should give greater deference to the marked indications of the Supreme Court majority than to the plurality of the past, Reed Elsevier achieved the preferable result, which will likely align with a future Supreme Court decision resolving this current circuit split.’).

26
Consumer Financial Protection Bureau, Arbitration Agreements: Proposed Rule with Request for Public Comment (May 5, 2016), available at http://files. consumerfinance.gov/f/documents/CFPB_Arbitration_Agreements_Notice_ of_Proposed_Rulemaking.pdf [hereinafter CFPB Proposed Rule].

27
Consumer Financial Protection Bureau, Arbitration Study: Report to Congress, Pursuant to Dodd-Frank Wall Street Reform and Consumer Protection Act § 1028(a) (Mar. 2015), available at http://files.consumerfinance.gov/f/201503_ cfpb_arbitration-study-report-to-congress-2015.pdf [hereinafter CFPB Arbitration Study].

28
Dodd-Frank Wall Street Reform and Consumer Protection Act § 1028(b). In addition, ‘[t]he findings in such rule’ must be ‘consistent with the study.’ Id.

29
CFPB Proposed Rule, supra note 26, at 1.

30
Id.

31
Mark J. Levin, CFPB Issues Proposed Rule to Prohibit Class Action Waivers in Consumer Arbitration Agreements, CFPB Monitor (May 5, 2016), https://www. cfpbmonitor.com/2016/05/05/cfpb-proposes-rule-to-prohibit-class-actionwaivers- in-consumer-arbitration-agreements/ ("In the meantime, companies that do not presently use arbitration agreements in their financial services contracts should strongly consider adding them, since agreements entered into before a final rule becomes effective are grandfathered under existing law which is favorable to class action waivers.").

32
AAA Class Arbitration Rules, supra note 3, Rule 9(a) & (b).

33
Data on filings from 2012 through October 2015 come from the AAA web page. Am. Arb. Ass’n, Search Case Dockets and Awards, https://www.adr.org/aaa/ faces/services/disputeresolutionservices/arbitration/classarbitration/ casedocketsearch (last visited Oct. 14, 2015). Data for prior years come from Gregory A. Litt & Tina Praprotnik, After Stolt-Nielsen, Circuits Split, but AAA Filings Continue, Mealey’s Int’l Arb. Rep., July 2012, at 1; see also William K. Slate II & Eric P. Tuchmann, Class Action Arbitrations, 11 Int’l Arb. L. Rev. 50, 53 (2008) (reporting data ‘for the period October 8, 2003 through January 1, 2008’) (‘Filings by year are as follows: 2003, 6 cases filed; 2004, 65 cases; 2005, 47 cases; 2006, 58 cases; 2007, 41 cases.’).

34
To the extent there is a lag in posting class arbitrations to the AAA web page after filing, the graph may underestimate the number of filings for 2015.

35
Brief for American Arbitration Association as Amicus Curiae in Support of Neither Party at 23-24, Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp., 559 US 662 (2010) [hereinafter AAA Amicus Br.].

36
Am. Arb. Ass’n, AAA Policy on Class Arbitrations (July 14, 2005), https://www. adr.org/aaa/ShowPDF?doc=ADRSTG_003840.

37
AAA Amicus Br., supra note 35, at 22.

38
See supra note 33. Of the 18 clause construction awards holding that the arbitration clause authorized class arbitration, in one the arbitrators followed a prior interpretation of the clause by a court and in another they construed the clause as authorizing collective arbitration under the Fair Labor Standards Act but not class arbitration more broadly. Another clause construction award, not included in the totals reported in the text, construed the company’s pre-2011 clause (which did not include a class waiver) as authorizing class arbitration but its post-2011 clause (which included a class waiver) as not authorizing class arbitration.

39
Brian T. Fitzpatrick, The End of Class Actions?, 57 Ariz. L. Rev. 161, 190 (2015).

40
Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373, 377 (2005); see also Myriam E. Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v Concepcion, 79 U. Chi. L. Rev. 623, 627 (2012).

41
See Peter B. Rutledge & Christopher R. Drahozal, "Sticky" Arbitration Clauses? The Use of Arbitration Clauses After Concepcion and Amex, 67 Vand. L. Rev. 955, 1001 tbl. 3 (2014).

42
Id. at 961.

43
Id. at 990. ‘Of the four franchisors that have switched to arbitration since Concepcion, three had used arbitration clauses at some point prior to the decision and switched back afterwards, while the fourth used arbitration to resolve some disputes before Concepcion and expanded its use to all disputes afterwards ….’ Id.

44
Id.

45
CFPB Arbitration Study, supra note 27, § 2, at 12.

46
Id. § 2, at 12-13.

47
Id. § 2, at 16.