Jeffrey I. Carton & Lindsay M. Held, A New Battleground For The Class Action War, 10/10/2006 N.Y.L.J. 10, Volume 236 (2006).
Despite an overly dramatic title/metaphor, this article out of the New York Law Journal poses an interesting question: Are class action waiver provisions in consumer contracts enforceable? Or, in sticking with the authors’ metaphor, do these provisions amount to an (unconscionable) ambush or a (knowing and voluntary) duel?
The authors introduce the issue of class action waivers by characterizing the Class Action Fairness Act as a "battle" in the “open warfare between the diametrically opposed sides of the class action struggle.” After a short description of the Act, the authors shift to the article’s real focus, class action waivers, calling them the “next battleground” in the “class action war.” The authors then Charge!(sorry, couldn’t help it) into a discussion of the pervasiveness and enforceability of these clauses, covering the major cases considering the clauses. The authors’ conclusion: “[C]lass arbitrations should be permitted, but broad based class action waivers should not be enforced as a matter of public policy.”
Bottom Line: Interesting article on class action waivers – hits the high points and provides a concise review of the law on the issue. Soldier On. After reading this article, you may want to strap on your battle gear, i.e., laptop and PDA, and take up the fight.
Some other metaphors the authors might have considered given the one they selected:
A Fight To The Death: The Blood Match Over Enforcing Class Action Waivers
Nuclear Holocaust: The Fallout From Class Action Waivers
Eradicating the Black Plague, Bird Flu, And Class Action Waivers
Civilization In The Balance: Class Action Waivers