AT&T Mobility LLC v. Concepcion Brief of Amicus Curiae NAACP Legal Defense & Educational Fund in Support of Respondents

    No. 09-893

In The

•§upnmtL> (Erntrt of %  Initext States

AT&T M o bility  LLC,
Petitioner,

v.

V in c e n t  a n d  L iza  C o n c e p c io n ,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF RESPONDENTS

J o shua  Civin  
NAACP L egal D e fen se  & 

Educational  F u n d , I n c . 
1444 I Street, NW, 10th FI. 
Washington, DC 20005 
(202) 682-1300

J oy M illigan  
Fellow, U.C. Berkeley  
S chool  o f  Law 

2850 Telegraph Ave.
Suite 500
Berkeley, CA 94705

J o hn  Payton 
Director-Counsel 

D ebo  P. Adeg bile  
Counsel o f Record 

NAACP L egal D e fe n se  & 
Educational  F u n d , In c . 

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

October 6, 2010

mailto:dadegbile@naacpldf.org


1
QUESTION PRESENTED

Class-action bans are provisions in standard-form 
contracts that purport to bar consumers or employ­
ees from pursuing classwide proceedings in any fo­
rum. In circumstances where they would function as 
exculpatory clauses, class-action bans have been 
held unenforceable under the generally applicable 
contract law of twenty states—without regard to 
whether they are found in arbitration agreements.

The Federal Arbitration Act (FAA) provides that 
arbitration agreements are enforceable, “save upon 
such grounds as exist at law or in equity for the 
revocation of any contract.” 9 U.S.C. § 2. The ques­
tion presented is:

When a class-action ban that is otherwise unen­
forceable under generally applicable contract law 
is embedded in an arbitration agreement, is the 
contract law preempted by the FAA?



11

TABLE OF CONTENTS

QUESTION PRESENTED..............  i
TABLE OF CONTENTS.......................................... ii
TABLE OF AUTHORITIES................................... iv
INTEREST OF AMICUS..........................................1
SUMMARY OF ARGUMENT.................................. 2
ARGUMENT.............................................................5
I. Class actions help ensure our nation’s con­

tinued progress toward equal opportunity.....5
A. Many significant civil rights advances

have resulted from class actions............... 5
B. Recent cases demonstrate that class

actions are still a vital tool for vindi­
cating civil rights....................................... 7

II. Individual claims and public enforcement
are inadequate substitutes for civil rights 
class actions......................................................14
A. Class actions offer redress for indi­

viduals who otherwise might not as­
sert their civil rights.................................15

B. Class actions are uniquely effective in
remedying and ultimately deterring 
systemic discrimination............................18

C. Civil rights class actions are a neces­
sary supplement to public enforcement.. 21

III. Federal law does not preempt courts from
invalidating class-action bans under gen­
erally applicable state law.............................. 26



Ill

A. Federal law recognizes the importance
of class actions especially for civil 
rights.............................. .........................27

B. The Federal Arbitration Act does not 
preclude state-law review of class- 
action bans in arbitration agreements.... 31

CONCLUSION.......... ............................................34



IV

TABLE OF AUTHORITIES
Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975).......................................... ...............1, 6, 20

Aman v. Cort Furniture Rental Corp., 85 F.3d 
1074 (3d Cir. 1996)............................................. . 7

Amchem Products, Inc. v. Windsor, 521 U.S.
591 (1997)....................... -............................ 16, 28

Bailey v. Patterson, 323 F.2d 201 (5th Cir.
1963)..................................   28

Board of Trustees of University of North 
Carolina v. Frasier, 350 U.S. 979 (1956)..........  28

Bolling v. Sharpe, 347 U.S. 497 (1954)................5
Brown v. Board of Education, 347 U.S. 483 

(1954)......................................................... 2, 5, 27
Brown v. Trustees of Boston University, 891 

F.2d 337 (1st Cir. 1989).....................................  21
Brunson v. Board of Trustees of School 

District No. 1, 311 F.2d 107 (4th Cir. 1962).....28
Butler v. Home Depot, Inc., No. 3:94-cv-4335 

(N.D. Cal. Jan. 14, 1998)...................................... 9
Butler v. Home Depot, Inc., 70 Fair Empl.

Prac. Cas. (BNA) 51 (N.D. Cal. 1996).................9
Buycks-Roberson v. Citibank Federal Savings 

Bank, 162 F.R.D. 322 (N.D. 111. 1995).................7
Califano v. Yamasaki, 442 U.S. 682 

(1979)...................................................... 20-21, 32



V

Celestine v. Petroleos de Venezuella SA, 266 
F.3d 343 (5th Cir. 2001)....................................  20

Circuit City Stores, Inc. u. Adams, 532 U.S.
105 (2001)..............................................................1

Coleman v. General Motors Acceptance Corp.,
No. 3:98-cv-211 (M.D. Tenn. Mar. 29, 2004).... 14

Coleman v. General Motors Acceptance Corp.,
220 F.R.D. 64 (M.D. Tenn. 2004).............. ........ 14

Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867 (1984)...................................... . 1, 20

Cuomo v. Clearing House Association, L.L.C.,
129 S. Ct. 2710 (2009)................................     25

Curtis-Bauer v. Morgan Stanley & Co., No. 
3:06-cv-3903, 2008 WL 4667090 (N.D. Cal.
Oct. 22, 2008)..................................................... 8-9

Davis v. Coca-Cola Bottling Co., 516 F,3d 955 
(11th Cir. 2008)..................................................  20

Davis v. Eastman Kodak Co., Nos. 6:04-cv- 
6098, 6:07-cv-6512 (W.D.N.Y. Sept. 3, 2010)....... 8

DeHoyos v. Allstate Corp., 345 F.3d 290 (5th 
Cir. 2003)...........................................................  13

DeHoyos v. Allstate Corp., 240 F.R.D. 269 
(W.D. Tex. 2007)..................   12-13

Deposit Guaranty National Bank v. Roper,
445 U.S. 326 (1980)...............................  16, 18, 22

Discover Bank v. Superior Court, 113 P.3d 
1100 (Cal. 2005)...............................   21-22

Doctor’s Associates, Inc. v. Casarotto, 517 U.S.
681 (1996)................................................  4, 32, 33



VI

Dothard v. Rawlinson, 433 U.S. 321 (1977)............ 6
Duke v. University of Texas at El Paso, 729 

F.2d 994 (5th Cir. 1984)..............................   19
East Texas Motor Freight System, Inc. v. 

Rodriguez, 431 U.S. 395 (1977).........................  31
EEOC v. Associated Dry Goods Corp., 449 

U.S. 590 (1981)..................................................  23
EEOC v. Waffle House, Inc., 534 U.S. 279 

(2002) ........................................................................................... 22

Employees Committed for Justice v. Eastman 
Kodak Co., 407 F. Supp. 2d 423 (W.D.N.Y.
2005).....................................................................20

Feeney v. Dell, Inc., 908 N.E.2d 753 (Mass.
2009)................................................... 14-15, 33-34

Franks v. Bowman Transportation Co., 424 
U.S. 747 (1976)....................................  1, 6, 17, 20

Frasier v. Board of Trustees of University of 
North Carolina, 134 F. Supp. 589 (M.D.N.C.
1955).....................................................................28

General Telephone Co. v. Falcon, 457 U.S. 147 
(1982)...........................................................  18, 21

Gentry v. Superior Court, 165 P.3d 556 (Cal.
2007)............................................  ..passim

Gonzalez v. Abercrombie & Fitch Stores, Inc.,
Nos. 3:04-cv-2817, 3:04-cv-4730, 3:04-cv- 
4731 (N.D. Cal. Apr. 15, 2005)............................ 9

Green v. School Board, 304 F.2d 118 (4th Cir.
1962) 28



Vll

Green Tree Financial Corp. v. Bazzle, 539 U.S.
444 (2003)............................................................ 1

Griggs v. Duke Power Co., 401 U.S. 424 
(1971)..................................................... 1, 2, 6, 17

Guerra v. GMAC LLC, No. 2:08-cv-1297, 2009 
WL 449153 (E.D. Pa. Feb. 20, 2009).................  12

Havens Realty Corp. v. Coleman, 455 U.S. 363 
(1982)................................................................. 6-7

Haynes v. Shoney’s, Inc., No. 3:89-cv-30093,
1993 WL 19915 (N.D. Fla. Jan. 25, 1993)........  10

Haynes v. Shoney’s, Inc., No. 3:89-cv-30093,
1992 WL 752127 (N.D. Fla. June 22, 1992) ... 9-10

Ingle v. Circuit City Stores, Inc., 328 F.3d 
1165 (9th Cir. 2003)...........................................  15

Ingram v. Coca-Cola Co., 200 F.R.D. 685 
(N.D. Ga. 2001)......................................    9

In re Monumental Life Insurance Co., 365 
F.3d 408 (5th Cir. 2004)....................................  13

In re Primus, 436 U.S. 412 (1978)........................  17
International Brotherhood of Teamsters v. 

United States, 431 U.S. 324 (1977)............. . 19-20
International Union v. Johnson Controls, Inc.,

499 U.S. 187 (1991).............................................. 6
Jones v. Ford Motor Credit Co., No. l:00-cv- 

8330 (S.D.N.Y. June 5, 2006)............................  14
Jones v. Ford Motor Credit Co., No. l:00-cv- 

8330, 2002 WL 88431 (S.D.N.Y. Jan. 22,
2002) 14



Vlll

Lewis v. City of Chicago, 130 S. Ct. 2191 
(2010) ................................................................................!> 20

Louisiana v. United States, 380 U.S. 145 
(1965).................................................................  20

Mannings v. Board of Public Instruction, 277 
F.2d 370 (5th Cir. 1960).................................... 28

McClain v. Lufkin Industries, Inc., 519 F.3d 
264 (5th Cir. 2008).............................................  10

McClain v. Lufkin Industries, Inc., No. 9:97- 
cv-63, 2005 U.S. Dist. LEXIS 42545 (E.D.
Tex. Jan. 13, 2005)............................................  10

McReynolds v. Sodexho Marriott Services,
Inc., No. LOl-cv-0510 (D.D.C. Aug. 10,
2005).......................................................................9

McReynolds v. Sodexho Marriott Services,
Inc., 349 F. Supp. 2d 1 (D.D.C. 2004).................9

Miller v. Countrywide Bank, N.A., 571 F.
Supp. 2d 251 (D. Mass. 2008)...........................  12

Moore v. Liberty National Life Insurance Co.,
267 F.3d 1209 (11th Cir. 2001).................    13

Muhammad v. County Bank of Rehoboth 
Beach, 912 A.2d 88 (N.J. 2006).......................  16

Mullen v. Treasure Chest Casino, LLC, 186 
F.3d 620 (5th Cir. 1999)............................... ••••• 17

NAACP v. Button, 371 U.S. 415 (1963)................  17
Newman v. Piggie Park Enterprises, Inc., 390 

U.S. 400 (1968)................................................ I  6
Norflet v. John Hancock Life Insurance Co.,

658 F. Supp. 2d 350 (D. Conn. 2009)................  13



28
Northcross v. Board of Education, 302 F.2d 

818 (6th Cir. 1962)..........................................
Orleans Parish School Board v. Bush, 242

F.2d 156 (5th Cir. 1957)...... .......................... 28
Perry v. Thomas, 482 U.S. 483 (1987)..............  4, 32
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963)......  6, 28
Ramirez v. Greenpoint Mortgage Funding,

Inc., No. 3:08-cv-369, 2010 WL 2867068 
(N.D. Cal. July 20, 2010)..................... .............. 12

Ramirez v. Greenpoint Mortgage Funding,
Inc., 633 F. Supp. 2d 922 (N.D. Cal. 2008)....... 12

Roberts v. Texaco, Inc., 979 F. Supp. 185 
(S.D.N.Y. 1997).............................................  10-11

Satchell v. FedEx Corp., Nos. 3:03-cv-2659, 
3:03-cv-2878 (N.D. Cal. Aug. 14, 2007)...............9

Satchell v. FedEx Corp., Nos. 3:03-cv-2659, 
3:03-cv-2878, 2005 WL 2397522 (N.D. Cal.
Sept. 28, 2005)...................................................... 9

Scott v. Cingular Wireless, 161 P.3d 1000 
(Wash. 2007).............. ...... ............ ...15, 16, 31, 33

Sharpe v. Cureton, 319 F.3d 259 (6th Cir.
2003)...................................................................  21

Smith v. Daimler-Chrysler Services North 
America, LLC, No. 2:00-cv-6003, 2005 WL 
2739213 (D.N.J. Oct. 24, 2005)..........................  14

Stolt-Nielsen S.A. v. Animalfeeds Interna­
tional Corp., 130 S. Ct. 1758 (2010)..................  32

Taylor v. Accredited Home Lenders, Inc., 580 
F. Supp. 2d 1062 (S.D. Cal. 2008).......................  12



13
Thompson v. Metropolitan Life Insurance Co., 

149 F. Supp. 2d 38 (S.D.N.Y. 2001)..............
Trafficante v. Metropolitan Life Insurance Co.,

409 U.S. 205 (1972).............................. ............. 23
Tucker v. Walgreen Co., Nos. 3:05-cv-440, 

3:07-cv-172 (S.D. 111. Mar. 24, 2008)................... 9
Tucker v. Walgreen Co., Nos. 3:05-cv-440, 

3:07-cv-172, 2007 WL 2915578 (S.D. 111. Oct.
5, 2007)...............................................................  26

United States v. Ironworkers Local 86, 443 
F.2d 544 (9th Cir. 1971)......................................19

United States v. United States Steel Corp., 520 
F.2d 1043 (5th Cir. 1975)..................................  26

Warren v. Xerox Corp., No. l:01-cv-2909, 2008 
WL 4371367 (E.D.N.Y. Sept. 19, 2008).............. 9

Watson v. Fort Worth Bank & Trust, 487 U.S.
977 (1988)...............................................................6

Williams v. National Security Insurance Co.,
237 F.R.D. 685 (M.D. Ala. 2006).......................  13

Wright v. Universal Maritime Service Corp.,
525 U.S. 70 (1998).................................................1

Federal Statutes
9 U.S.C. § 1 et seq.............................................L 32
9U.S.C. § 2 .................................................. 4, 27, 32
15 U.S.C. § 1691 et seq...........................................30
15 U.S.C. § 1691.............................................. 12, 30
15 U.S.C. § 1691e.................................................. 30
42 U.S.C. § 1981a(a)(l)



XI

42 U.S.C. § 1981a(b)............................................ . 30
42 U.S.C. § 2000e et seq.....................................6, 29
42 U.S.C. § 3601 et seq......................................   23
42 U.S.C. § 3605...........................................     12
42 U.S.C. § 3610....................................................23
42 U.S.C. § 3612.................................................   23
42 U.S.C. §3614....................................................23
Civil Rights Act of 1991, Pub. L. No. 102-166,

105 Stat. 1071..................................................... 30
Dodd-Frank Wall Street Reform and

Consumer Protection Act, Pub. L. No. 111- 
203, 124 Stat. 1376 (2010).................................  25

Equal Credit Opportunity Act, Pub. L. No. 93- 
495, Title V, 88 Stat. 1524 (1974).....................  30

Equal Credit Opportunity Act Amendments of 
1976, Pub. L. No. 94-239, 90 Stat. 251.............30

Equal Employment Opportunity Act of 1972,
Pub. L. No. 92-261, 86 Stat. 103........... ........... 29

Fair Housing Amendments Act of 1988, Pub.
L. No. 100-430, 102 Stat. 1619..........................23

State Statutes
Cal. Civ. Code § 2982.10(a).................................... 26
La. Rev. Stat. 32:1261(2)(k)................................... 26
2005 Cal. Stat. ch. 128, § 5 (Assem. B. 68)...........26
2004 La. Acts 276 (H.B. 1253)..............................  26

Federal Legislative M aterials 
118 Cong. Reg. 7168 (1972)..................................  29



xii
H.R. Rep. No. 102-40(11) (1991), reprinted in

1991 U.S.C.C.A.N. 694 .....................................  30
S. Rep. No. 92-415 (1971), reprinted in 

Subcommittee on Labor of the Senate 
Committee on Labor and Public Welfare,
92d Cong., 2d Sess., Legislative History of 
the Equal Employment Opportunity Act of 
1972 (1972).................................. .................29-30

S. Rep. No. 94-589 (1976), reprinted in 1976 
U.S.C.C.A.N. 403...............................  30-31

Federal Rules
Fed. R. Civ. P. 23.................................. ..........passim
Fed. R. Civ. P. 23(b)(2)..........................................28
Fed. R. Civ. P. 23(c)(2)..........................................  16
Fed. R. Civ. P. 23(e)................................................16
Fed. R. Civ. P. 23, Advisory Committee’s Note 

to the 1966 Amendment, reprinted in 39 
F.R.D. 69 (1966)...........................................  18, 28

Fed. R. Civ. P. 68.....................................................18
Fed. R. Civ. P. 68(a)................................................18
Fed. R. Civ. P. 68(d)................................................18

Other A uthorities
Binyamin Appelbaum, Fed Held Back as 

Evidence Mounted on Subprime Loan 
Abuses, Wash. Post, Sept. 27, 2009, at A01......24

Robert Belton, A Comparative Review of 
Public and Private Enforcement of Title VII 
of the Civil Rights Act of 1964, 31 Vand. L.
Rev. 905 (1978).................. ......................... 6



Xlll

Marianne Bertrand & Sendhil Mullainathan,
Are Emily and Greg More Employable Than 
Lakisha and Jamal? A Field Experiment on 
Labor Market Discrimination, 94 Am. Econ.
Rev. 991 (2004)..................................................... 8

Debbie Gruenstein Bocian et al., Race,
Ethnicity and Subprime Home Loan
Pricing, 60 J. Econ. & Bus. 110 (2008).............  11

Raymond H. Brescia, Tainted Loans: The 
Value of a Mass Torts Approach in 
Subprime Mortgage Litigation, 78 U. Cin. L.
Rev. 1 (2009)....................................................... 25

Brief of Amicus International Association of 
Official Human Rights Agencies Supporting 
Petitioners, Lewis v. City of Chicago, 130 
S. Ct. 2191 (2010) (No. 08-974).........................  23

Hon. Robert L. Carter, The Federal Rules of 
Civil Procedure as a Vindicator of Civil 
Rights, 137 U. Pa. L. Rev. 2179 (1989)..5-6, 16-17

EEOC, FY 2009 Performance and 
Accountability Report (2009).....   22

Myriam Gilles, Opting Out of Liability: The 
Forthcoming, Near-Total Demise of the 
Modern Class Action, 104 Mich. L. Rev. 373 
(2005)................................................................. 7-8

Myriam Gilles & Gary B. Friedman,
Exploding the Class Action Agency Costs 
Myth: The Social Utility of Entrepreneurial 
Lawyers, 155 U. Pa. L. Rev. 103 (2006)............  33



XIV

Tristin K. Green, Targeting Workplace
Context: Title VII as a Tool for Institutional 
Reform, 72 Fordham L. Rev. 659 (2003)...........  19

Jack Greenberg, Civil Rights Class Actions: 
Procedural Means of Obtaining Substance,
39 Ariz. L. Rev. 575 (1997)................................... 2

Deborah R. Hensler et al., Class Action 
Dilemmas: Pursuing Public Goals for 
Private Gain (2000)..................     28-29

Judith J. Johnson, Rebuilding the Barriers:
The Trend in Employment Discrimination 
Class Actions, 19 Colum. Hum. Rts. L. Rev.
1 (1987)............................................................. 30

Benjamin Kaplan, Continuing Work of the 
Civil Committee: 1966 Amendments of the 
Federal Rules of Civil Procedure (Part I), 81 
Harv. L. Rev. 356 (1967)...................................  29

Caroline E. Mayer, Car-Loan Rates Marked 
Up More for Blacks, Report Says, Wash.
Post, Oct. 1, 2003, at E01.................   13-14

National Commission on Fair Housing &
Equal Opportunity, The Future of Fair 
Housing (2008)...................................................  23

National Fair Housing Alliance, A Step in the 
Right Direction: 2010 Fair Housing Trends 
Report (2010)................................................. 23-24

Note, Certifying Classes and Subclasses 
in Title VII Suits, 99 Harv. L. Rev. 619 
(1988)............................................................. 18-19



XV

Devah Pager et al., Discrimination in a Low- 
Wage Labor Market: A Field Experiment, 74 
Am. Soe. Rev. 777 (2009).....................................8

Kenneth J. Rojc & Sara B. Robertson, Dealer 
Bate Participation Class Action Settlements: 
Impact on Automotive Financing, 61 Bus.
Law. 819 (2006)........................... ...................... 14

Jacob S. Rugh & Douglas S. Massey, Racial 
Segregation and the American Foreclosure 
Crisis, 75 Am. Soc. Rev. 629 (2010)..................  11

Robert G. Schwemm & Jeffrey L. Taren, 
Discretionary Pricing, Mortgage 
Discrimination, and the Fair Housing Act,
45 Harv. C.R.-C.L. L. Rev. 375 (2010)........ 12, 25

Robert Samuel Smith, Race, Labor & Civil 
Rights: Griggs versus Duke Power and the 
Struggle for Equal Employment 
Opportunity (2008)............................................  17

U.S. General Accounting Office, No. GAO-04- 
280, Consumer Protection: Federal and 
State Agencies Face Challenges in 
Combating Predatory Lending (2004)......... 24-25

U.S. General Accounting Office, No. GAO-06- 
79, Fair Housing: HUD Needs Better 
Assurance That Intake and Investigation 
Processes Are Consistently Thorough (2006)..... 24

U.S. General Accounting Office, No. GAO-04- 
463, Fair Housing: Opportunities to Improve 
HUD’s Oversight and Management of the 
Enforcement Process (2004)...............................24



XVI

U.S. General Accounting Office, No. GAO-09- 
704, Fair Lending: Data Limitations and 
the Fragmented U.S. Financial Regulatory 
Structure Challenge Federal Oversight and 
Enforcement Efforts (2009)................................  24

U.S. General Accounting Office, No. GAO-10- 
75, U.S. Department of Justice: Information 
on Employment Litigation, Housing and 
Civil Enforcement, Voting, and Special 
Litigation Sections’ Enforcement Efforts 
from Fiscal Years 2001 through 2007 
(2009)...................................................... 22-23, 24

Steve Vogel, EEOC Confronts Growing 
Backlog, Dwindling Staff, Wash. Post, Feb.
3, 2009, at A13................................................... 22

Hon. Jack Weinstein, Some Reflections on the 
“Abusiveness” of Class Actions, 58 F.R.D.
299 (1973) 21



1
INTEREST OF AMICUS*

The NAACP Legal Defense & Educational Fund, 
Inc. (LDF) is a non-profit legal organization that has 
assisted African Americans and other people of color 
in securing their civil and constitutional rights for 
more than six decades. In litigation before this 
Court and other courts, LDF has focused particularly 
upon class actions because of their effectiveness in 
facilitating collective action to secure systemic 
change. See, e.g., Lewis v. City of Chicago, 130 S. Ct. 
2191 (2010); Cooper v. Fed. Reserve Bank of Rich­
mond, 467 U.S. 867 (1984); Franks v. Bowman 
Transp. Co., 424 U.S. 747 (1976); Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975); Griggs v. Duke 
Power Co., 401 U.S. 424 (1971); Newman v. Piggie 
Park Enters., Inc., 390 U.S. 400 (1968).

LDF also has appeared as a party and as an 
amicus before this Court to ensure that the Federal 
Arbitration Act, 9 U.S.C. § 1 et seq., is interpreted in 
a manner consistent with effective enforcement of 
our nation’s civil rights laws. See, e.g., Green Tree 
Fin. Corp. v. Bazzle, 539 U.S. 444 (2003); Circuit 
City Stores, Inc. v. Adams, 532 U.S. 105 (2001); 
Wright v. Universal Maritime Serv. Corp., 525 U.S. 
70 (1998).

1 Pursuant to Supreme Court Rule 37.6, counsel for the 
amicus states tha t no counsel for a party authored this brief in 
whole or in part, and tha t no person other than the amicus, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. The parties have filed 
blanket consent letters with the Clerk of the Court pursuant to 
Supreme Court Rule 37.3.



2

SUMMARY OF THE ARGUMENT
American democracy depends upon robust civil 

rights laws that are vigorously enforced. Yet that 
vigorous enforcement is now threatened by the ex­
panding reach of a novel contractual provision—one 
that could bar increasing numbers of individuals 
from pursuing class actions in any legal forum if 
they want to obtain a job, purchase a car, receive a 
loan, or enter into other contractual transactions.

AT&T Mobility invoked such a class-action ban, 
which was inserted in its standard-form arbitration 
agreement with cell-phone users, in an attempt to 
preclude class treatment of respondents’ fraud alle­
gations. Applying California contract law, the Ninth 
Circuit held that AT&T Mobility’s class-action ban 
was unconscionable because it effectively insulated 
the company from the full scope of its potential li­
ability. Pet. App. 4a-11a. While this case thus di­
rectly involves the effect of class-action bans on con­
sumer protection law, it also could have significant 
implications for the continued use of class actions in 
the civil rights context—where they have been an 
indispensable tool for promoting equal opportunity.

“Civil rights and class actions have an historic 
partnership.” Jack Greenberg, Civil Rights Class 
Actions: Procedural Means of Obtaining Substance, 
39 Ariz. L. Rev. 575, 577 (1997). Thanks to land­
mark class actions, ranging from Brown v. Board of 
Education, 347 U.S. 483 (1954), to Griggs v. Duke 
Power Co., 401 U.S. 424 (1971), our nation has made 
significant progress toward the Constitutional aspi­
ration of a “more perfect Union.” Yet discrimination 
undeniably persists. A brief survey of class litigation



3
in the past two decades challenging discrimination 
by large employers, mortgage lenders, insurers, and 
vehicle financing companies illustrates this fact. 
These types of cases merit attention here because 
they arose in contexts where class-action bans could 
be incorporated into contracts between the pertinent 
parties, thereby preventing similar actions in the fu­
ture.

The reasoning that courts have used to invalidate 
class-action bans under the ordinary contract law of 
California and nineteen other states applies with 
particular force to civil rights. Contrary to the as­
sertions of AT&T Mobility and its amici, isolated in­
dividual claims do not provide a meaningful alterna­
tive to class treatment. Class actions offer remedies 
for civil rights violations in circumstances where in­
dividuals are unlikely to proceed on their own be­
cause they lack timely notice, have insufficient re­
sources, or fear retaliation. Not only are individual 
claims often too time- and resource-intensive to be 
realistic, but they rarely provide relief that extends 
beyond the named plaintiffs. By contrast, class ac­
tions serve broader public interests by effectively 
remedying and deterring civil rights violations and 
especially systemic discrimination. Public enforce­
ment is also an inadequate substitute for class pro­
ceedings. Government regulators lack the capacity to 
prosecute the vast majority of cases brought to them. 
Moreover, their enforcement priorities shift over 
time.

Sophisticated businesses make decisions based on 
their bottom lines. If individuals who experience 
discrimination lack viable recourse to class actions, 
companies may determine that allowing widespread



4
civil rights violations to persist is less costly than 
taking corrective action. Simply put: eliminating the 
risk of liability for aggregated civil rights violations 
means that some number of those injuries will re­
main unredressed. The result is a less just society.

Federal law does not preclude application of ordi­
nary state contract law to strike down class-action 
bans in certain circumstances. To the contrary, the 
Federal Rules of Civil Procedure, federal antidis­
crimination statutes, and this Court have all recog­
nized the importance of class actions to vigorous en­
forcement by private attorneys general, especially in 
the civil rights context.

Nor does the Federal Arbitration Act (FAA) pre­
empt a court’s invalidation of a class-action ban un­
der generally applicable state law, where, as here, 
that ban is embedded in a standard-form arbitration 
agreement. The FAA provides that arbitration 
agreements are enforceable, “save upon such 
grounds as exist at law or in equity for the revoca­
tion of any contract.” 9 U.S.C. § 2. Interpreting this 
provision, this Court has held that “generally appli­
cable contract defenses, such as fraud, duress, or un- 
conscionability, may be applied to invalidate arbitra­
tion agreements without contravening [the FAA].” 
Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 
(1996). California contract law, which the Ninth 
Circuit simply followed, does not treat a class-action 
ban in an arbitration agreement “in a manner differ­
ent from that in which it otherwise construes nonar­
bitration agreements.” Perry v. Thomas, 482 U.S. 
483, 492 n.9 (1987). The FAA therefore provides no 
grounds for reversal.



5
ARGUMENT

I. Class actions help ensure our nation’s con­
tinued progress toward equal opportunity.
There is a “special dependence of civil rights (and 

other public rights) litigation on the device of the 
class action.” Hon. Robert L. Carter, The Federal 
Rules of Civil Procedure as a Vindicator of Civil 
Rights, 137 U. Pa. L. Rev. 2179, 2184 (1989) (herein­
after “Carter, Federal Rules”). Although we have 
made great strides as a nation, class actions remain 
essential to remedy the discrimination that unfortu­
nately still persists. This is particularly apparent in 
employment, lending, and other contexts where 
class-action bans could be inserted into standard- 
form contracts to forestall future class proceedings.2

A. Many significant civil rights advances 
have resulted from class actions.

This Court’s 1954 decision in Brown is but one 
example of how civil rights class actions have con­
tributed to dismantling segregation and promoting 
equal opportunity for all Americans, regardless of 
their birth or background.3 Civil rights class actions

2 In discussing the relationship between class actions and 
effective enforcement of civil rights, this amicus brief focuses 
primarily on race discrimination, but the arguments apply 
equally to combating inequities based on gender, religion, dis­
ability, and other protected categories.

3 Three of the cases consolidated before the Supreme Court 
in Brown were federal class actions; the fourth was brought in 
Delaware state court. 347 U.S. at 486 n .l, 495; see also Bolling 
v. Sharpe, 347 U.S. 497, 498 (1954) (class action decided on the 
same day and same grounds as Brown). “In the face of massive 
official resistance to local implementation of the Court’s deci­
sion in Brown,” class actions were critical because “the civil



6

have been indispensable in reducing discrimination 
in the economic sphere. Indeed, the first case in 
which this Court recognized the beneficial impact of 
private attorneys general in securing broad compli­
ance with civil rights laws was a class action that 
successfully enjoined discrimination against African- 
American customers at a South Carolina restaurant 
chain. See Newman v. Piggie Park Enters., Inc., 390 
U.S. 400, 400-02 (1968).

Class actions also led to many of the key em­
ployment discrimination precedents that invigorated 
enforcement of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. § 2000e et seq. See, e.g., Int’l Union 
v. Johnson Controls, Inc., 499 U.S. 187 (1991); Wat­
son v. Fort Worth Bank & Trust, 487 U.S. 977 (1988); 
Dothard v. Rawlinson, 433 U.S. 321 (1977); Franks 
v. Bowman Transp. Co., 424 U.S. 747 (1976); Albe­
marle Paper Co. v. Moody, 422 U.S. 405 (1975); 
Griggs, 401 U.S. 424; Robert Belton, A Comparative 
Review of Public and Private Enforcement of Title 
VII of the Civil Rights Act of 1964, 31 Vand. L. Rev. 
905, 932-33 (1978). And class actions have exposed 
and remedied widespread fair housing violations, 
such as “racial steering” by real estate brokers, see, 
e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363,

rights attorney could never count on school officials to construe 
a court order admitting enumerated individual plaintiffs to a 
segregated school as an order to desegregate.” Carter, Federal 
Rules, at 2186; cf. Potts v. Flax, 313 F.2d 284, 289 (5th Cir. 
1963) (“[T]o require a school system to admit the specific suc­
cessful plaintiff Negro child while others, having no such pro­
tection, were required to attend schools in a racially segregated 
system, would be for the court to contribute actively to the class 
discrimination.”).



7
366-70 (1982), and “redlining” by lenders who refuse 
to do business within predominantly minority 
neighborhoods, see, e.g., Buycks-Roberson v. Citibank 
Fed. Sav. Bank, 162 F.R.D. 322, 325-28 (N.D. 111. 
1995). These victories could have been more difficult 
to obtain if class-action bans had been commonplace 
in the last half century.

B. Recent cases dem onstrate that class ac­
tions are still a vital tool for vindicating  
civil rights.

In recent years, civil rights class actions have 
continued to play an important role, particularly in 
redressing the subtle and sophisticated types of dis­
crimination that have proved most difficult to elimi­
nate. Cf. Aman v. Cort Furniture Rental Corp., 85 
F.3d 1074, 1081-82 (3d Cir. 1996) (“Discrimination 
continues . . . and is often simply masked in more 
subtle forms.”). Below, we provide an illustrative 
but non-exhaustive survey of the ongoing impact of 
class actions over the past two decades in employ­
ment, lending, insurance, and vehicle financing—all 
contexts in which class-action bans are becoming 
more prevalent and thus could be particularly det­
rimental to robust enforcement of our civil rights 
laws. See, e.g., Br. of Amici Am. Bankers Ass’n. et 
al. 3 (noting prevalence of class-action bans in banks’ 
consumer contracts); Br. of Amicus Equal Employ­
ment Advisory Council 2 (noting that member em­
ployers have adopted class-action bans for employ­
ment disputes); Myriam Gilles, Opting Out of Liabil­
ity: The Forthcoming, Near-Total Demise of the Mod­
ern Class Action, 104 Mich. L. Rev. 373, 418 (2005) 
(“[M]any contemporary civil-rights cases, while not 
bottomed on contractual theories, implicate contrac-



8

tual relationships that are capable of communicating 
effective collective action waivers.”).

1. Class-action bans could dramatically curtail 
relief for employment discrimination, which persists 
in far too many industries and occupations. See, e.g., 
Devah Pager et al., Discrimination in a Low-Wage 
Labor Market: A Field Experiment, 74 Am. Soc. Rev. 
777, 792-93 (2009) (finding that African-American 
applicants were half as likely as equally qualified 
white applicants to receive a callback interview or 
job offer, and minority applicants without criminal 
records fared no better than white applicants with 
records); Marianne Bertrand & Sendhil Mullaina- 
than, Are Emily and Greg More Employable Than 
Lakisha and Jamal? A Field Experiment on Labor 
Market Discrimination, 94 Am. Econ. Rev. 991, 992 
(2004) (finding that applicants with distinctively 
white-sounding names received 50% more callbacks 
for interviews than equally qualified applicants with 
distinctively African-American names, and the gap 
widened for applicants with better resumes).

Over the past two decades, class actions have ex­
posed institution-wide discrimination, won signifi­
cant monetary relief for thousands of minority and 
female employees, and led to comprehensive and in­
novative reforms of employment policies at a number 
of leading corporations, including Abercrombie & 
Fitch, Coca-Cola, Eastman Kodak, FedEx, Home 
Depot, Morgan Stanley, Sodexho Marriott Services, 
Walgreens, and Xerox.4 For instance, in a case liti-

4 See, e.g., Davis v. Eastman Kodak Co., Nos. 6:04-cv-6098, 
6:07-cv-6512 (W.D.N.Y. Sept. 3, 2010) (approving class settle­
ment on behalf of over 3,000 current and former African- 
American employees); Curtis-Bauer v. Morgan Stanley & Co.,



9
gated by amicus LDF, a district court certified a 
class action that resulted in significant remedies for 
“allegations of an overt policy of blatant racial dis­
crimination and retaliation” at the Shoney’s restau­
rant chain that was “developed and directed” by “top 
Shoney’s management” and “implemented by all- 
white supervisory and management personnel.” 
Haynes v. Shoney’s, Inc., No. 3:89-cv-30093, 1992 WL

No. 3:06-cv-3903, 2008 WL 4667090 (N.D. Cal. Oct. 22, 2008) 
(approving class settlement on behalf of over 1,300 African- 
American and Latino financial advisors); Warren v. Xerox 
Corp., No. l:01-cv-2909, 2008 WL 4371367 (E.D.N.Y. Sept. 19, 
2008) (approving class settlement on behalf of nearly 1,500 Af­
rican-American sales representatives); Tucker v. Walgreen Co., 
Nos. 3:05-cv-440, 3:07-cv-172 (S.D. 111. Mar. 24, 2008) (approv­
ing consent decree on behalf of 10,000 African-American em­
ployees); Satchell v. FedEx Corp., Nos. 3:03-cv-2659, 3:03-cv- 
2878 (N.D. Cal. Aug. 14, 2007) (approving class settlement on 
behalf of 20,000 African-American and Latino employees); 
Satchell v. FedEx Corp., Nos. 3:03-cv-2659, 3:03-cv-2878, 2005 
WL 2397522 (N.D. Cal. Sept. 28, 2005) (certifying class action); 
McReynolds v. Sodexho Marriott Servs., Inc., No. l:01-cv-0510 
(D.D.C. Aug. 10, 2005) (approving consent judgment on behalf 
of 2,600 current and former African-American managers); 
McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 1 
(D.D.C. 2004) (denying in part motion for summary judgment); 
Gonzalez v. Abercrombie & Fitch Stores, Inc., Nos. 3:04-cv-2817, 
3:04-cv-4730, 3:04-cv-4731 (N.D. Cal. Apr. 15, 2005) (approving 
consent decree settling claims of systemic discrimination 
against Latino, African-American, Asian-American, and female 
applicants and employees); Ingram v. Coca-Cola Co., 200 
F.R.D. 685 (N.D. Ga. 2001) (approving class settlement on be­
half of 2,200 current and former African-American employees); 
Butler v. Home Depot, Inc., No. 3:94-cv-4335 (N.D. Cal. Jan. 14, 
1998) (approving consent decree on behalf of 17,000 current 
and former female employees and 200,000 unsuccessful appli­
cants); Butler v. Home Depot, Inc., 70 Fair Empl. Prac. Cas. 
(BNA) 51 (N.D. Cal. 1996) (certifying class action).



10

752127, at *2, 20 (N.D. Fla. June 22, 1992) (certify­
ing class action); see also Haynes v. Shoney’s, Inc., 
No. 3:89-cv-30093, 1993 WL 19915, at *6-7 (N.D. Fla. 
Jan. 25, 1993) (approving consent decree requiring, 
inter alia, $105 million in relief to class members 
and significant corporation-wide reforms).

Another recent example is McClain v. Lufkin In­
dustries, Inc., where the Fifth Circuit affirmed a dis­
trict court’s conclusion that a large Texas manufac­
turing plant’s “practice of delegating subjective deci­
sion-making authority to its white managers with 
respect to . . . promotions resulted in a disparate im­
pact on [a class of over 700] black employees in viola­
tion of Title VII.” 519 F.3d 264, 272 (5th Cir. 2008). 
Among the district court’s findings was that “white 
employees have a significant advantage in gaining 
the skills and abilities needed to qualify them for 
promotion. . . . [whereas] Black employees are more 
likely to be placed in dead-end positions and left to 
seek training on their own.” McClain v. Lufkin In­
dus., No. 9:97-cv-63, 2005 U.S. Dist. LEXIS 42545, 
at *32-33 (E.D. Tex. Jan. 13, 2005), aff’d in relevant 
part, 519 F. 3d 264 (5th Cir. 2008).

In addition to providing effective remedies for 
class members and company-wide reforms, these re­
cent examples of major class actions deter further 
wrongdoing by signaling to the market that em­
ployment discrimination is harmful economically 
and to the corporate brand. Such beneficial impacts 
were recently acknowledged by a federal district 
court after it approved an “imaginative” nationwide 
class settlement to resolve allegations that Texaco 
pervasively discriminated against African-American 
employees and concealed evidence pertinent to the



11

litigation. Roberts v. Texaco, Inc., 979 F. Supp. 185, 
189-93, 198 (S.D.N.Y. 1997) (adopting special mas­
ter’s report summarizing the settlement, valued at 
$172 million, which included, inter alia, the creation 
of a Task Force on Equity and Fairness charged with 
“initiating and determining the effectiveness of im­
provements and additions to Texaco’s human re­
sources programs and helping to monitor the pro­
gress made in such programs toward creating oppor­
tunity for African-Americans, diversity in the Texaco 
workforce and equal opportunity for all Texaco em­
ployees”). The court adopted the special master’s 
conclusion that the case highlighted “the importance 
of private attorneys general in enforcement of the 
proscriptions against racial discrimination in the 
workplace” and “may well have important ameliora­
tive impact not only at Texaco but in the corporate 
context as a whole.” Id. at 189, 197-98.

2. Contractually based bans on class actions also 
could severely impede efforts to eradicate persistent 
discrimination in mortgage lending, insurance, and 
vehicle financing.

For instance, there is ample research that preda­
tory mortgage lending has exacerbated the current 
economic crisis and contributed to higher foreclosure 
rates for African-American and Latino homeowners. 
See, e.g., Jacob S. Rugh & Douglas S. Massey, Racial 
Segregation and the American Foreclosure Crisis, 75 
Am. Soc. Rev. 629, 632-34, 644-46 (2010); Debbie 
Gruenstein Bocian et al., Race, Ethnicity and Sub­
prime Home Loan Pricing, 60 J. Econ. & Bus. 110, 
121-23 (2008). A number of cases targeting such 
predatory practices have survived motions to dis-



12

miss,5 and less than three months ago, a district 
court certified a nationwide class of African- 
American and Hispanic borrowers who allege that a 
mortgage lender violated the Equal Credit Opportu­
nity Act (ECOA), 15 U.S.C. § 1691, and the Fair 
Housing Act (FHA), 42 U.S.C. § 3605, “by giving its 
authorized brokers discretion to mark up the price of 
wholesale mortgage loans, a policy that led minority 
borrowers to be charged disproportionately high 
rates compared to similarly situated whites.” Rami­
rez v. Greenpoint Mortgage Funding, Inc., No. 3:08- 
cv-369, 2010 WL 2867068, at *1 (N.D. Cal. July 20, 
2010); see also Ramirez v. Greenpoint Mortgage 
Funding, Inc., 633 F. Supp. 2d 922, 924 (N.D. Cal. 
2008) (denying mortgage company’s motion to dis­
miss).

Recent class actions also have sought to redress 
pervasive discrimination in the sale of insurance. 
For instance, a district court recognized the “sub­
stantial and beneficial” results of a nationwide class 
action on behalf of approximately five million Afri­
can-American and Latino customers of a leading in­
surance company that charged minority policyhold­
ers higher premiums for automobile and homeown­
ers’ insurance than it charged similarly situated 
white policyholders. DeHoyos v. Allstate Corp., 240

5 See, e.g., Guerra v. GMAC LLC, No. 2:08-cv-1297, 2009 
WL 449153, a t *1 (E.D. Pa. Feb. 20, 2009); Miller v. Country­
wide Bank, N.A., 571 F. Supp. 2d 251, 253 (D. Mass. 2008); 
Taylor v. Accredited Home Lenders, Inc., 580 F. Supp. 2d 1062, 
1064 (S.D. Cal. 2008); Robert G. Schwemm & Jeffrey L. Taren, 
Discretionary Pricing, Mortgage Discrimination, and the Fair 
Housing Act, 45 Harv. C.R.-C.L. L. Rev. 375, 404-27 (2010) 
(summarizing pending litigation).



13
F.R.D. 269, 275, 331 (W.D. Tex. 2007). The class set­
tlement included not only monetary relief but also a 
“change in the [company’s] credit scoring formula, an 
educational outreach program, multi-cultural mar­
keting, [and] an improved appeals process.” Id. at 
330-31; see also DeHoyos v. Allstate Corp., 345 F.3d 
290 (5th Cir. 2003) (affirming denial of the insurer’s 
motion to dismiss). Other class actions have brought 
relief to thousands of individuals adversely affected 
by the previously widespread practice in the life in­
surance industry of targeting African Americans for 
policies with higher premiums and lower benefits 
than those offered to white customers.6

Contractually based bans on class actions also 
could have adversely affected another set of recent 
class actions, which exposed financial arrangements 
between leading vehicle financing companies and car 
dealerships that resulted in systematically higher 
mark-ups on financing for African-American and La­
tino purchasers than for similarly situated whites. 
See, e.g., Caroline E. Mayer, Car-Loan Rates Marked 
Up More for Blacks, Report Says, Wash. Post, Oct. 1, 
2003, at E01 (reporting study findings that “African 
Americans were almost three times as likely as 
whites to be charged mark-ups on loans financed by

6 See, e.g., In re Monumental Life Ins. Co., 365 F.3d 408, 
411-13 (5th Cir. 2004) (reversing denial of class certification); 
Moore v. Liberty N at’l Life Ins. Co., 267 F.3d 1209, 1211-12 
(11th Cir. 2001) (affirming denial of insurer’s motion for judg­
ment on the pleadings); Norflet v. John Hancock Life Ins. Co., 
658 F. Supp. 2d 350, 353 (D. Conn. 2009) (approving class set­
tlement); Williams v. N a t’l Sec. Ins. Co., 237 F.R.D. 685, 687 
(M.D. Ala. 2006) (approving class settlement); Thompson v. 
Metro. Life Ins. Co., 149 F. Supp. 2d 38, 40-41 (S.D.N.Y. 2001) 
(denying insurer’s summary judgment motion).



14
General Motors Acceptance Corp.” and that this dis­
parity could not be explained by creditworthiness or 
other legitimate business factors). These class ac­
tions led to industry-wide reforms, including caps on 
dealer mark-ups, as well as pre-approved financing 
for minority customers and consumer education ini­
tiatives.7 See also Part II.C. infra.

From this brief, non-exhaustive survey, it is evi­
dent that class-action bans could prove extremely 
detrimental in many spheres where class actions 
have been successful over the past two decades in 
redressing civil rights violations.
II. Individual claim s and public enforcem ent 

are inadequate substitutes for civil rights 
class actions.
In striking down class-action bans under the gen­

erally applicable contract law of twenty states, 
courts have emphasized the broad public interests 
served by class actions. See, e.g., Feeney v. Dell, Inc., 
908 N.E.2d 753, 764 (Mass. 2009) (noting that class- 
action bans “undermine[ ] the public interest in de-

7 See, e.g., Jones v. Ford Motor Credit Co., No. l:00-cv-8330 
(S.D.N.Y. June 5, 2006) (approving class settlement); Jones v. 
Ford Motor Credit Co., No. l:00-cv-8330, 2002 WL 88431 
(S.D.N.Y. Jan. 22, 2002) (denying company’s motion to dis­
miss); Sm ith v. Daimler-Chrysler Servs. N. Am., LLC, No. 2:00- 
6003, 2005 WL 2739213 (D.N.J. Oct. 24, 2005) (approving class 
settlement); Coleman v. Gen. Motors Acceptance Corp., No. 
3:98-cv-211 (M.D. Tenn. Mar. 29, 2004) (approving class set­
tlement); Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 
64 (M.D. Tenn. 2004) (certifying nationwide class action); Ken­
neth J. Rojc & Sara R. Robertson, Dealer Rate Participation 
Class Action Settlements: Impact on Automotive Financing, 61 
Bus. Law. 819, 820-26 (2006) (describing settlements).



15
terring wrongdoing”); Scott v. Cingular Wireless, 161 
P.3d 1000, 1005 (Wash. 2007) (“Class remedies not 
only resolve the claims of the individual class mem­
bers but can also strongly deter future similar 
wrongful conduct, which benefits the community as 
a whole.”); Gentry v. Superior Ct., 165 P.3d 556, 556- 
57 (Cal. 2007). This is especially true for civil rights. 
See, e.g., Ingle u. Circuit City Stores, Inc., 328 F.3d 
1165, 1175-76 (9th Cir. 2003) (concluding that a con­
tract prohibiting employment discrimination class 
actions was unconscionable under California law).

It is unrealistic to expect isolated individual ac­
tions or government regulators to fill the gaps in 
civil rights enforcement that may well arise if judi­
cial review of class-action bans under state contract 
law is restricted along the lines that AT&T Mobility 
advocates. Cf. Pet’r. Br. 39-45. First, class actions 
facilitate legal redress in circumstances where indi­
viduals are unlikely to pursue claims on their own 
due to lack of notice, insufficient resources, or fear of 
retaliation. Second, the class-action device is often 
more effective than individual case-by-case proceed­
ings in exposing, remedying, and deterring systemic 
discrimination. Third, public enforcement is an en­
tirely inadequate substitute for class actions, since 
federal and state regulators have never had the re­
sources or capacity to pursue more than a very small 
number of the civil rights violations that occur 
across the nation.

A. Class actions offer redress for individu­
als who otherw ise m ight not assert their  
civil rights.

This Court has repeatedly recognized the impor-



16
tance of class actions in providing legal redress for 
inequities that may be too time- and resource­
intensive to realistically challenge through isolated 
individual claims. See, e.g., Amchem Prods., Inc. u. 
Windsor, 521 U.S. 591, 617 (1997); Deposit Guar. 
Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980). Even 
where supposedly plaintiff-friendly procedures for 
arbitrating individual claims may be available, class 
actions have key features that often are more advan­
tageous in ensuring effective civil rights remedies.

The class certification process, as well as the pub­
lic and media attention that class actions generate, 
broaden awareness about and expand participation 
in civil rights and other litigation. See Fed. R. Civ. 
P. 23(c)(2), (e). As noted by the Ninth Circuit in the 
decision under review and other courts reviewing the 
validity of class-action bans under state contract 
law, class actions alert potential plaintiffs who oth­
erwise may never realize that the unfair outcomes 
they experienced were due to a violation of civil 
rights statutes or other laws, much less that these 
outcomes were part of a broader pattern including 
similar infractions of the rights of others. See Pet. 
App. 43a-45a; Gentry, 165 P.3d at 566-67; Scott, 161 
P.3d at 1007; Muhammad v. County Bank of 
Rehoboth Beach, 912 A.2d 88, 97-98 (N.J. 2006).

Especially in the civil rights context, class actions 
also help ameliorate individuals’ legitimate fears of 
retaliation, which may discourage them from pro­
ceeding on their own. Reflecting on his experience 
as a civil rights litigator, Judge Robert Carter ob­
served that in cases “seeking to vindicate novel 
rights in the face of majoritarian hostility, the very 
ability to proceed required the institution of a class



17
action” because a “lone plaintiff’ may be “extremely 
vulnerable to the pressure of intimidation.” Carter, 
Federal Rules, at 2186; see also Gentry, 165 P.3d at 
565-67 (“[F]ear of retaliation will often deter em­
ployees from individually suing their employers”); 
Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 
624 (5th Cir. 1999) (finding class certification re­
quirements satisfied where “class members still em­
ployed by the [defendant] might be reluctant to file 
individually for fear of workplace retaliation”).

Indeed, for individuals who have experienced dis­
crimination and other civil rights violations, “asso­
ciation for litigation may be the most effective form 
of political association.” NAACP v. Button, 371 U.S. 
415, 431 (1963); accord In re Primus, 436 U.S. 412, 
423-26 (1978). For instance, a sense of shared com­
mitment among African-American workers at Duke 
Power in North Carolina helped catalyze the class 
action that led to this Court’s landmark decision in 
Griggs that Title VII permits workers to challenge 
both intentional discrimination and “artificial, arbi­
trary, and unnecessary barriers to employment.” 
401 U.S. at 431; see Robert Samuel Smith, Race, La­
bor & Civil Rights: Griggs versus Duke Power and 
the Struggle for Equal Employment Opportunity 84- 
90, 113, 177-81 (2008).

Moreover, class certification prevents an action 
from becoming moot even if a change in the circum­
stances of the named plaintiff renders her ineligible 
for relief. See, e.g., Franks, 424 U.S. at 753-56. 
Class treatment therefore diminishes a defendant s 
ability to strategically preempt individual claims 
and thereby avoid implementing structural relief— 
for instance by making an offer of judgment under



18
Federal Rule of Civil Procedure 68.8 See, e.g., De­
posit Guar. Nat’l Bank, 445 U.S. at 332-40 (discuss­
ing the defendant’s attempt to moot a putative con­
sumer class action by tendering the maximum recov­
erable amount to each individual plaintiff prior to an 
appeal from the denial of class certification).

Equally important, class actions serve broader 
goals of judicial economy by channeling multiple po­
tential suits into a single forum. See Fed. R. Civ. P. 
23, Advisory Committee’s Note to the 1966 Amend­
ment, reprinted in 39 F.R.D. 69, 102-03 (1966) (here­
inafter “Advisory Committee’s Note”) (noting the po­
tential for class actions to “achieve economies of 
time, effort, and expense, and promote uniformity of 
decision as to persons similarly situated”); Gen. Tel. 
Co. v. Falcon, 457 U.S. 147, 155 (1982).

B. Class actions are uniquely effective in 
rem edying and ultim ately deterring sys­
tem ic discrim ination.

Class actions provide particular advantages in 
addressing pervasive and entrenched discrimination 
that separately filed cases often cannot offer. See 
Note, Certifying Classes and Subclasses in Title VII 
Suits, 99 Harv. L. Rev. 619, 628 (1988) (“In both ad­
verse-impact and disparate-treatment cases, . . . the 
difference between the success and failure of a valid 
claim is often the difference between a class action

8 Rule 68 provides that a defendant may serve an offer of 
judgment on a plaintiff more than  ten days before trial begins; 
if the plaintiff declines the offer and then receives a judgment 
a t trial tha t “is not more favorable than the unaccepted offer,” 
the plaintiff must pay costs incurred by the defendant after the 
offer was made. Fed. R. Civ. P. 68(a), (d).



19
and an individual suit.”). “[B]y broadening the num­
ber of complainants, the class action triggers inquiry 
about institutional and organizational sources of 
harm and encourages development of solutions 
aimed at systemic reform.” Tristin K. Green, Target­
ing Workplace Context: Title VII as a Tool for Institu­
tional Reform, 72 Fordham L. Rev. 659, 678 (2003).

In many civil rights cases, most, if not all, perti­
nent information is within the exclusive province of 
the defendant—through its agents, employees, re­
cords, and documents. Discovery of this evidence— 
especially in challenges to institution-wide practices 
of large corporate defendants—is expensive; thus, 
the ability to spread the costs over a class is key to 
obtaining redress. See, e.g., Duke v. Univ. of Tex. at 
El Paso, 729 F.2d 994, 997 (5th Cir. 1984) (reversing 
judgment against a discrimination plaintiff in order 
to permit broad discovery in support of a class certi­
fication motion, and observing that “[h]ad [the plain- 
tiffj’s class claims prevailed, she would have faced a 
distinctively less onerous burden at the trial of her 
individual claim”).

Without broad discovery of company-wide statis­
tical and other data that class actions facilitate, it is 
difficult for civil rights plaintiffs to prove a pervasive 
pattern and practice of discrimination. See Int’l 
Bhd. of Teamsters v. United States, 431 U.S. 324, 
339-40 n.20 (1977) (“In many cases the only avail­
able avenue of proof is the use of racial statistics to 
uncover clandestine and covert discrimination by the 
employer or union involved.” (quoting United States 
v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir. 
1971))). Establishing such a pattern often contrib­
utes to a just outcome because, as this Court has



20

held, it creates a rebuttable presumption of inten­
tional disparate treatment and thus imposes upon 
the defendant the burden to establish that this was 
not the case. Id. at 361-62; see also Cooper v. Fed. 
Reserve Bank of Richmond, 467 U.S. 867, 875-76 
(1984); Franks, 424 U.S. at 772-73; Employees Com­
mitted for Justice v. Eastman Kodak Co., 407 F. 
Supp. 2d 423, 428 (W.D.N.Y. 2005) (“Class actions 
are uniquely suitable for litigating discrimination 
claims under the pattern and practice framework.”).9 
Statistical evidence of broad-based practices also fa­
cilitates proof of disparate-impact discrimination, 
especially under Title VII and in other contexts 
where such proof can establish a prima facie case 
and thus shift the burden to the defendant to provide 
a business justification for its practice. See, e.g., 
Lewis v. City of Chicago, 130 S. Ct. 2191, 2197-98 
(2010).

Furthermore, a class action is frequently the 
most effective means of procuring the broad relief 
necessary to eradicate entrenched discrimination. 
District courts have “not merely the power but the 
duty to render a decree which will so far as possible 
eliminate the discriminatory effects of the past as 
well as bar like discrimination in the future.” Albe­
marle Paper Co., 422 U.S. at 418 (quoting Louisiana 
v. United States, 380 U.S. 145, 154 (1965)). But this 
Court has held that “the scope of injunctive relief is

9 Although this Court has never addressed whether Team­
sters burden-shifting method of proof is available in private 
non-class actions, several courts have held tha t it is not. See, 
e.g., Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 967-69 (11th 
Cir. 2008); Celestine v. Petroleos de Venezuella SA, 266 F.3d 
343, 355-56 (5th Cir. 2001).



21

dictated by the extent of the violation established.” 
Califano v. Yamasaki, 442 U.S. 682, 702 (1979). 
Thus, absent class certification, courts often refrain 
from granting relief that extends beyond what is 
necessary to remedy the harms suffered by the indi­
vidual plaintiffs. See, e.g., Sharpe v. Cureton, 319 
F.3d 259, 273 (6th Cir. 2003) (“While district courts 
are not categorically prohibited from granting in­
junctive relief benefiting an entire class in an indi­
vidual suit, such broad relief is rarely justified. . . .”); 
Brown v. Trs. of Boston Univ., 891 F.2d 337, 361 (1st 
Cir. 1989) (“Ordinarily, classwide relief . . .  is appro­
priate only where there is a properly certified 
class.”).

To be sure, courts must conduct a “rigorous 
analysis” prior to certifying a class action. Falcon, 
457 U.S. at 161. But where this hurdle is sur­
mounted, “[t]he impact of class suits in civil rights 
cases is substantial. Precedent alone never has the 
effect of a judgment naming a particular class of 
which a person is a member. Very often, a class ac­
tion permits the judge to get to the heart of an insti­
tutional problem.” Hon. Jack Weinstein, Some Re­
flections on the “Abusiveness” of Class Actions, 58 
F.R.D. 299, 304 (1973).

C. Civil rights class actions are a necessary  
supplem ent to public enforcem ent.

The California Supreme Court and other courts 
that have invalidated class-action bans in certain 
circumstances have rejected the notion that federal 
and state regulators have the capacity to provide an 
“adequate substitute” for the deterrent effect of pri­
vate class actions. Discover Bank v. Superior Ct.,



22

113 P.3d 1100, 1110 (Cal. 2005); see Gentry, 165 P.3d 
at 567, 569. There is no evidentiary basis for the as­
sertions of AT&T Mobility and its amici to the con­
trary. Cf. Pet’r. Br. 45; Br. of Amici South Carolina 
& Utah 4-6; Br. of Amici Law Professors 30-31; Br. of 
Amici Am. Bankers Ass’n. et al. 21-29; Br. of Amicus 
Chamber of Commerce 5-7. As this Court has recog­
nized, “[t]he aggregation of individual claims in the 
context of a classwide suit is an evolutionary re­
sponse to the existence of injuries unremedied by the 
regulatory action of government.” Deposit Guar. 
Nat’l Bank, 445 U.S. at 339. While amicus LDF has 
long advocated for robust government enforcement of 
civil rights laws, federal and state regulators have 
faced historic and persistent constraints.

For example, the Equal Employment Opportunity 
Commission (EEOC) has consistently suffered from a 
shortfall of staffing and resources, resulting in ongo­
ing backlogs in processing employment discrimina­
tion charges filed with the agency. See EEOC, FY 
2009 Performance and Accountability Report 20-21 
(2009); Steve Vogel, EEOC Confronts Growing Back­
log, Dwindling Staff, Wash. Post, Feb. 3, 2009, at 
A13. Consequently, the EEOC has never been able 
to file suit in more than a “small fraction” of the 
charges that it receives annually. See EEOC v. Waf­
fle House, Inc., 534 U.S. 279, 290 n.7 (2002) (“recog­
nizing that the EEOC files suit in less than one per­
cent of the charges filed each year”). The Depart­
ment of Justice (DOJ) litigates an even smaller 
number of employment discrimination cases. See 
U.S. Gen. Accounting Office, No. GAO-10-75, U.S. 
Department of Justice: Information on Employment 
Litigation, Housing and Civil Enforcement, Voting,



23
and Special Litigation Sections’ Enforcement Efforts 
from Fiscal Years 2001 through 2007, at 30-37 (2009) 
(hereinafter “U.S. Gen. Accounting Office, U.S, 
DOJ’).

State and local fair employment agencies are 
similarly short-handed. See Br. of Amicus Int’l Ass’n 
of Official Human Rights Agencies Supporting Peti­
tioners 15-16 & app. B, Lewis v. City of Chicago, 130 
S. Ct. 2191 (2010) (No. 08-974). Due to these con­
straints, “private lawsuits by aggrieved employees” 
have always been and will surely remain “an impor­
tant part of [Title VII’s] means of enforcement.” 
EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 595 
(1981).

Private attorneys general also provide a neces­
sary supplement to public enforcement of fair hous­
ing laws. The FHA was originally designed to be en­
forced primarily by private plaintiffs. See 42 U.S.C. 
§ 3601 et seq.; Trafficante v. Metro. Life Ins. Co., 409 
U.S. 205, 211 (1972). Federal enforcement powers 
were subsequently expanded, see Fair Housing 
Amendments Act of 1988, Pub. L. No. 100-430, §§ 
810, 812, 814, 102 Stat. 1619, 1625-35 (codified at 42 
U.S.C. §§ 3610, 3612, 3614), but agency action re­
mains limited. For instance, the U.S. Department of 
Housing and Urban Development (HUD), which 
processes administrative fair housing complaints 
and adjudicates claims, has a history of backlogs and 
under staffing. See Nat’l Comm’n on Fair Housing & 
Equal Opportunity, The Future of Fair Housing 17 
(2008); Nat’l Fair Housing Alliance, A Step in the 
Right Direction: 2010 Fair Housing Trends Report 
26-27 (2010) (hereinafter “NFHA, Step in the Right 
Direction”). Moreover, DOJ’s fair housing docket is



24
quite small, especially compared to the total number 
of fair housing complaints filed. See id., at 20 & tbl.; 
U.S. Gen. Accounting Office, U.S. DOJ, at 49-54. 
State and local fair housing agencies face similar 
constraints. See generally U.S. Gen. Accounting Of­
fice, No. GAO-06-79, Fair Housing: HUD Needs Bet­
ter Assurance That Intake and Investigation Proc­
esses Are Consistently Thorough (2006); U.S. Gen. 
Accounting Office, No. GAO-04-463, Fair Housing: 
Opportunities to Improve HUD’s Oversight and 
Management of the Enforcement Process (2004).

Fair lending violations also have been under­
policed, despite strong evidence of ongoing discrimi­
nation in access to credit, especially in recent years. 
See Part I.B supra; U.S. Gen. Accounting Office, No. 
GAO-09-704, Fair Lending: Data Limitations and 
the Fragmented U.S. Financial Regulatory Structure 
Challenge Federal Oversight and Enforcement Ef­
forts (2009); Binyamin Appelbaum, Fed Held Back as 
Evidence Mounted on Subprime Loan Abuses, Wash. 
Post, Sept. 27, 2009, at A01. From 2001 to 2009, 
federal banking regulators referred only 41 cases al­
leging a pattern and practice of race or national ori­
gin discrimination in lending to DOJ, and none of 
the referrals was from the Office of the Comptroller 
of the Currency (OCC), which supervises national 
banks. See NFHA, Step in the Right Direction, at 14- 
15.

Some state and local authorities have attempted 
to redress lending discrimination, but they have 
been stymied by federal agencies’ preemption claims. 
See U.S. Gen. Accounting Office, No. GAO-04-280, 
Consumer Protection: Federal and State Agencies 
Face Challenges in Combating Predatory Lending



25
58-71 (2004) (describing state predatory lending laws 
and federal preemption claims). While this Court 
recently rejected the OCC’s expansive assertion that 
federal law authorized it to preempt state prosecu­
tions of national banks for violations of state fair 
lending laws, the decision did not overturn federal 
regulators’ restrictions on state efforts to obtain in­
formation about potential civil rights violations in 
the absence of a lawsuit. Cuomo v. Clearing House 
Ass’n, L.L.C., 129 S. Ct. 2710, 2721-22 (2009).10

Beyond filling the sizeable gaps in government 
enforcement, class proceedings focus attention on the 
scope and magnitude of discriminatory practices and 
create pressure for government regulators and legis­
lators to address issues they might otherwise ignore. 
See Robert G. Schwemm & Jeffrey L. Taren, Discre­
tionary Pricing, Mortgage Discrimination, and the 
Fair Housing Act, 45 Harv. C.R.-C.L. L. Rev. 375, 
426 (2010); Raymond H. Brescia, Tainted Loans: The 
Value of a Mass Torts Approach in Subprime Mort­
gage Litigation, 78 U. Cin. L. Rev. 1, 11-12, 46-48, 
50-51, 73 (2009). In addition, judicial or voluntary 
resolution of class actions allows experimentation 
with potential remedies, which, if successful, may 
stimulate regulatory reform. Id. at 12, 53-54. For 
instance, the recent class actions targeting discrimi­
nation in vehicle financing, discussed in Part I.B su­
pra, prompted legislative reform at the state level, 
including caps on dealer mark-up rates. See, e.g.,

10 Congress subsequently clarified relevant preemption 
standards, but the new law does not preclude all federal pre­
emption claims. See Dodd-Frank Wall Street Reform and Con­
sumer Protection Act, Pub. L. No. 111-203, §§ 1041-1048, 124 
Stat. 1376, 2011-18(2010).



26
2005 Cal. Stat. ch. 128, § 5 (Assem. B. 68) (codified 
at Cal. Civ. Code § 2982.10(a)) (enacting Car Buyer’s 
Bill of Rights); 2004 La. Acts 276 (H.B. 1253) (codi­
fied at La. Rev. Stat. 32:1261(2)(k)).

Even where government agencies do pursue en­
forcement action, they often file suit only after pri­
vate class actions are underway. See, e.g., Tucker v. 
Walgreen Co., Nos. 3:05-cv-440, 3:07-cv-172, 2007 
WL 2915578, at *1 (S.D. 111. Oct. 5, 2007) (noting 
that the EEOC filed suit almost two years after a 
private class action commenced). In such circum­
stances, private class actions play a complementary 
role; for instance, they provide an avenue for contin­
ued participation in the proceedings by individuals 
who were subjected to the defendant’s discrimina­
tory practices, and they may press for comprehensive 
relief more tenaciously than government regulators. 
See, e.g., United States v. U.S. Steel Corp., 520 F.2d 
1043, 1047-48, 1060 (5th Cir. 1975) (vacating and 
remanding for the district court to further consider 
the scope of relief necessary to remedy discrimina­
tion against a class of 3,000 African-American steel­
workers who continued to pursue the appeal even 
after the federal government withdrew in favor of a 
negotiated settlement).
III. Federal law does not preem pt courts 

from invalidating class-action bans un­
der generally applicable state law.

Because of the significant deterrent effect of class 
actions in civil rights and other contexts, it is en­
tirely appropriate that class-action bans have been 
held unenforceable in certain circumstances under 
the generally applicable contract law of California



27
and nineteen other states. Resp. Br. 17-21 & app. 
AT&T Mobility and its amici are incorrect that the 
FAA requires state courts to suspend their usual 
analysis as to whether a class-action ban is invalid, 
simply because that ban is inserted into an arbitra­
tion agreement. Cf. Pet’r. Br. 48-56; Br. of Amicus 
Chamber of Commerce 20-28. The FAA takes no po­
sition on class actions, and it specifically authorizes 
courts to review the validity of an arbitration agree­
ment just as they would any other contract, which is 
exactly what the Ninth Circuit did when it applied 
California law in this case. Pet. App. 4a-11a; 9 
U.S.C. § 2.

But AT&T Mobility and its amici also overlook a 
more fundamental reality: Federal law is far from 
hostile to class actions. This is especially true in the 
civil rights context. An animating principle behind 
the 1966 amendments to Federal Rule of Civil Pro­
cedure 23 was to facilitate use of class actions to ef­
fectively address civil rights violations. And Con­
gress has often acted to ensure the availability of 
class actions for vigorous civil rights enforcement. 
These federal statutes and rules further support the 
conclusion that the FAA does not preempt judicial 
determinations that class-action bans are uncon­
scionable in particular circumstances under gener­
ally applicable state law.

A. Federal law recognizes the im portance of 
class actions especially  for civil rights.

1. Civil rights litigators utilized class actions to 
combat discrimination in Brown and other cases 
prior to the 1966 amendments to Federal Rule of 
Civil Procedure 23. But those revisions galvanized



28
widespread acceptance of class actions as indispen­
sable to vigorous civil rights enforcement. The 1966 
amendments added Rule 23(b)(2), which provides for 
class treatment when “the party opposing the class 
has acted or refused to act on grounds that apply 
generally to the class, so that final injunctive relief 
or corresponding declaratory relief is appropriate re­
specting the class as a whole.”

The Advisory Committee’s Note affirms that civil 
rights class actions are paradigmatic cases for Rule 
23(b)(2) certification.11 Advisory Committee’s Note, 
39 F.R.D. at 102 (“Illustrative are various actions in 
the civil-rights field where a party is charged with 
discriminating unlawfully against a class. . . .”). 
Courts and commentators, including drafters of the 
1966 amendments, have acknowledged that Rule 
23(b)(2) is especially suitable for class certification in 
civil rights cases. See, e.g., Amchem, 521 U.S. at 614 
(recognizing that civil rights cases alleging class- 
based discrimination are “prime examples” of appro­
priate Rule 23(b)(2) cases); Deborah R. Hensler et

11 The Advisory Committee’s Note cited eight race discrimi­
nation lawsuits as illustrative of cases intended to be certified 
under Rule 23(b)(2), each of which was litigated by amicus 
LDF. See Advisory Committee’s Note, 39 F.R.D. a t 102 (citing 
Potts, 313 F.2d at 286; Bailey v. Patterson, 323 F.2d 201, 202 
(5th Cir. 1963); Brunson v. Bd. of Trs. of Sch. Dist. No. 1, 311 
F.2d 107, 107 (4th Cir. 1962); Green v. Sch. Bd., 304 F.2d 118, 
119 (4th Cir. 1962); Orleans Parish Sch. Bd. v. Bush, 242 F.2d 
156, 157 (5th Cir. 1957); Mannings v. Bd. of Pub. Instruction, 
277 F.2d 370, 371 (5th Cir. 1960); Northcross v. Bd. o f Educ., 
302 F.2d 818, 818 (6th Cir. 1962); Frasier v. Bd. of Trs. o f Univ. 
of N.C., 134 F. Supp. 589 (M.D.N.C. 1955) (three-judge court), 
aff’d sub nom. Bd. of Trs. of Univ. of N.C. v. Frasier, 350 U.S. 
979, 979 (1956)).



29
al., Class Action Dilemmas: Pursuing Public Goals 
for Private Gain 12 (2000) (“[T]he energizing force 
which motivated the whole rule . . . was the firm de­
termination to create a class action system which 
could deal with civil rights.” (quoting John Frank, 
Advisory Committee member; citation omitted)); 
Benjamin Kaplan, Continuing Work of the Civil 
Committee: 1966 Amendments of the Federal Rules of 
Civil Procedure (Part I), 81 Harv. L. Rev. 356, 389 
(1967) (explaining that “new subdivision (b)(2) . . . 
build [s] on experience mainly, but not exclusively, in 
the civil rights field”).

2. In addition to the endorsement of civil rights 
class actions in the 1966 amendments to Rule 23, 
Congress has repeatedly recognized the importance 
of civil rights class actions.

For instance, when Congress amended Title VII 
in 1972, it expressly affirmed that class actions 
should be widely available to challenge employment 
discrimination. As the legislative history of the 
Equal Employment Opportunity Act of 1972, Pub. L. 
No. 92-261, 86 Stat. 103 (codified as amended at 42 
U.S.C. § 2000e et seq.) reveals, Congress rebuffed an 
amendment to Title VII that would have restricted 
private class suits. See 118 Cong. Rec. 7168 (1972) 
(statement of Sen. Williams) (“A provision limiting 
class actions was contained in the House bill and 
specifically rejected by the Conference Committee.”). 
Rather, Congress “agree[d] with the courts that Title 
VII actions are by their very nature class complaints, 
and that any restriction on such actions would 
greatly undermine the effectiveness of Title VII.” S. 
Rep. No. 92-415, at 27 (1971), reprinted in Subcomm. 
on Labor of the Senate Comm, on Labor and Public



30
Welfare, 92d Cong., 2d Sess., Legislative History of 
the Equal Employment Opportunity Act of 1972, at 
436 (1972); see also Judith J. Johnson, Rebuilding 
the Barriers: The Trend in Employment Discrimina­
tion Class Actions, 19 Colum. Hum. Rts. L. Rev. 1, 5 
(1987) (describing the legislative history of the re­
jected provision).

When Congress again strengthened Title VII’s 
protections in the Civil Rights Act of 1991, it rejected 
concerns about the scope of relief that could result 
from applying to class actions a new provision allow­
ing for compensatory and punitive damages. See 
Civil Rights Act of 1991, Pub. L. No. 102-166, § 
102(a)(1), (b), 105 Stat. 1071, 1072 (codified at 42 
U.S.C. § 1981a(a)(l), (b)); cf. H.R. Rep. No. 102-40(11) 
at 68 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 754 
(dissenting views of Rep. Henry Hyde et al.).

Another example is the Equal Credit Opportunity 
Act (ECOA). See Pub. L. No. 93-495, Title V, 88 
Stat. 1521 (1974) (codified as amended at 15 U.S.C. § 
1691 et seq.). When Congress amended ECOA in 
1976 to include race, national origin, and religion 
among the prohibited categories of discrimination, it 
strengthened the Act’s express class-action enforce­
ment provisions by increasing the ceiling for class- 
action damages. See Equal Credit Opportunity Act 
Amendments of 1976, Pub. L. No. 94-239, §§ 2, 6, 90 
Stat. 251, 253 (codified as amended at 15 U.S.C. §§ 
1691, 1691e). Although Congress simultaneously 
augmented public enforcement resources, the Senate 
Report emphasized that “the chief enforcement tool 
. . . will continue to be private actions for actual and 

punitive damages” and stressed the importance of 
class treatment in such private actions. S. Rep. No.



31
94-589, at 13-14 (1976), reprinted in 1976
U.S.C.C.A.N. 403, 415-16.

The FAA should be read in light of Congress’s 
subsequent enactment of civil rights laws, the 1966 
amendments to the Federal Rules, and judicial deci­
sions interpreting them, which specifically recognize 
the contribution of class actions to the ongoing work 
of ensuring equal opportunity. See, e.g., E. Tex, Mo­
tor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 
(1977) (recognizing that “suits alleging racial or eth­
nic discrimination are often by their nature class 
suits, involving classwide wrongs”).

B. The Federal Arbitration Act does not 
preclude state-law review  o f class-action  
bans in arbitration agreem ents.

As respondents explain in more detail, the FAA 
does not preclude a court’s application of ordinary 
state contract law to invalidate a class-action ban, 
simply because that ban has been embedded in an 
arbitration agreement. Resp. Br. 12-17; see also 
Scott, 161 P.3d at 1008 (“Clauses that eliminate 
causes of action, eliminate categories of damages, or 
otherwise strip away a party’s right to vindicate a 
wrong do not change their character merely because 
they are found within a clause labeled ‘Arbitra­
tion.’”). It is important to emphasize that respon­
dents do not claim, and the Ninth Circuit did not 
hold, that a judicial forum for class litigation must 
always be available. Rather, the sole question is: 
whether a ban on class actions in all forums, includ­
ing both courts and arbitration, can be unconscion-



32
able under state law in at least some circum­
stances?12

The text of the FAA contains no bar on using 
class-action procedures in an arbitration, much less 
in court. See 9 U.S.C. § 1 et seq.; cf. Califano, 442 
U.S. at 699-701 (concluding that “a direct expression 
by Congress of its intent” is necessary to depart from 
ordinary procedural rules permitting class actions). 
To the contrary, the FAA permits state courts to de­
cline to enforce class-action bans in arbitration 
agreements “upon such grounds as exist at law or in 
equity for the revocation of any contract.” 9 U.S.C. 
§ 2. Of course, state “[c]ourts may not . . . invalidate 
arbitration agreements under state laws applicable 
only to arbitration provisions.” Doctor’s Assocs., 517 
U.S. at 687. But this Court has recognized that 
“generally applicable contract defenses, such as 
fraud, duress, or unconscionability, may be applied 
to invalidate arbitration agreements without contra­
vening § 2 [of the FAA].” Id.; accord Perry, 482 U.S. 
at 492. In this case, the Ninth Circuit based its con­
clusion that the class-action ban was invalid upon 
generally applicable California contract law that has 
been applied equally to arbitration and non­
arbitration contracts. Pet. App. 11a; Gentry, 165

12 Here, invalidating AT&T Mobility’s class-action ban may 
cause respondents’ class action to proceed in court. Under the 
“blow-up clause” of AT&T Mobility’s standard-form agreement, 
if the class-action ban is “found to be unenforceable, then the 
entirety of this arbitration provision shall be null and void.” 
Pet. App. 61a. As a general matter, however, the FAA does not 
preclude parties from agreeing to classwide arbitration. See 
Stolt-Nielsen S.A. v. Animalfeeds In t’l Corp., 130 S. Ct. 1758, 
1775 (2010).



33
P.3d at 560-70; Resp. Br. 21-24. The FAA therefore 
provides no grounds for reversal.

It is in no way a departure from generally appli­
cable state contract law for courts in California and 
elsewhere to consider the “public interest” served by 
class actions “in deterring wrongdoing” when assess­
ing the validity of class-action bans. See, e.g., 
Feeney, 908 N.E.2d at 764; Scott, 161 P.3d at 1005. 
Class actions are not simply a means of providing 
individual compensation; rather, “deterrence of cor­
porate wrongdoing is what we can and should expect 
from class actions.” Myriam Gilles & Gary B. 
Friedman, Exploding the Class Action Agency Costs 
Myth: The Social Utility of Entrepreneurial Lawyers, 
155 U. Pa. L. Rev. 103, 106 (2006). Thus, as the 
California Supreme Court has recognized and not­
withstanding AT&T Mobility’s assertions to the con­
trary, “it makes little sense to focus only on whether 
the class representative himself or herself would be 
stymied in the pursuit of an individual arbitration 
remedy . . . , rather than considering as well the dif­
ficulties for the class of [plaintiffs] affected by [the 
defendant’s allegedly unlawful practices.” Gentry, 
165 P.3d at 568 n.7; cf. Pet’r. Br. 39-48. As ex­
plained in Part II supra, there is often no effective 
substitute for a civil rights class action, especially in 
remedying and ultimately deterring systemic dis­
crimination.

Ultimately, it is AT&T Mobility and its amici, 
and not the courts of California and other states, 
who are “singling out” arbitration for the type of 
“suspect status” that this Court has rejected as in­
consistent with Congress’s intent underlying the 
FAA. Doctor’s Assocs., 517 U.S. at 687; Feeney, 908



34
N.E.2d at 765. The emphasis that AT&T Mobility 
and its amici place on the purported flaws of class 
arbitration suggests that their true priority is not to 
promote arbitration but to eliminate the potential for 
class actions by their employees and consumers in 
any legal forum. Cf. Pet’r. Br. 53-56; Br. of Amici 
Am. Bankers’ Ass’n. et al. 13-20. The harm that will 
result if this goal is achieved is not limited to con­
sumer protection cases such as this one; preserving 
judicial review of class-action bans under ordinary 
state contract law is equally critical in the civil 
rights context.

CONCLUSION
For the foregoing reasons as well as those out­

lined by respondents, the decision below should be 
affirmed.

Respectfully submitted,

J o h n  P a y t o n  
Director- Counsel 

D e b o  P. A d e g b il e  
Counsel of Record 

NAACP L e g a l  D e f e n s e  & 
E d u c a t io n a l  F u n d , I n c . 

99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

J o s h u a  C iv in  
NAACP L e g a l  D e f e n s e  & 

E d u c a t io n a l  F u n d , I n c .

mailto:dadegbile@naacpldf.org


35

October 6, 2010

1444 I St., NW, 10th Floor 
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