When you stamp down too hard, stuff leaks out the sides. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) was the boot. Since then, we've been waiting to see what would leak out the sides. There has been a good deal of discussion about the ramifications of Concepcion. While Concepcion may make things harder for class actions, the severity of the opinion is also inspiring interesting challenges to arbitration agreements on many fronts. In NAACP of Camden County East v. Foulke Management Corp. (August 2, 2011), the Appellate Division of the New Jersey Superior Court concluded that convoluted and inconsistent arbitration provisions in an automobile purchase contract could not be enforced, reversing the trial court's order directing the matter to individual arbitration.
The opinion focused heavily on the concurring opinion of Justice Thomas for its conclusion that a confusing consumer contract provision related to arbitration would not be enforced:
Thus, in the aftermath of AT&T Mobility, state courts remain free to decline to enforce an arbitration provision by invoking traditional legal doctrines governing the formation of a contract and its interpretation. Applying such core principles of contract law here, we must decide whether there was mutual assent to the arbitration provisions in the dealership's contract documents. As part of that assessment, we must examine whether the terms of the provisions were stated with sufficient clarity and consistency to be reasonably understood by the consumer who is being charged with waiving her right to litigate a dispute in court.
Slip op., at 31. The Court found ample evidence for the proposition that the consumer could not have reasonably understood the arbitration provisions. The Court did take a moment to opine that the trial court was correct when it found that a class action waiver could not be invalidated on public policy grounds. But the Court then found that the issue was irrelevant to the outcome, since the provisions were unenforcable on formation grounds.