Feeney, et al. v. Dell Inc., et al. (Lawyers Weekly No. 10-142-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11133a JOHN A. FEENEY & another[1] vs. DELL INC.[2] & others.[3] August 1, 2013. Consumer Protection Act, Class action, Arbitration. Public Policy. Contract, Arbitration. Arbitration, Waiver. Federal Preemption. Practice, Civil, Class action. Following the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (Concepcion), we held in Feeney v. Dell Inc., 465 Mass. 470, 472 (2013) (Feeney II), that the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq.(2006), does not foreclose a court “from invalidating an arbitration agreement that includes a class action waiver where a plaintiff can demonstrate that he or she effectively cannot pursue a claim against [a] defendant in individual arbitration according to the terms of the agreement, thus rendering his or her claim nonremediable.” Having concluded that the plaintiffs in Feeney II had indeed made such a demonstration, we affirmed the ruling of a judge in the Superior Court invalidating a class action waiver in the parties’ arbitration agreement. Feeney II, supra. Just eight days after the release of our decision in Feeney II, the Supreme Court issued an opinion in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2312 (2013) (Amex), holding that a class action waiver in an arbitration agreement is enforceable under the FAA even if a plaintiff proves that the class waiver, combined with other onerous terms of the agreement, effectively precludes the plaintiff from vindicating his or her Federal statutory rights. Following the release of Amex, the defendants in Feeney II filed a petition for rehearing on the grounds that Amex abrogated Feeney II. We stayed the issuance of the rescript in Feeney II and invited the plaintiffs to submit a response, which they did. We conclude that following Amex, our analysis in Feeney II no longer comports with the Supreme Court’s interpretation of the FAA. In Feeney II, supra, we were asked to interpret and apply Concepcion, which held that the FAA preempted a California rule that “classif[ied] most collective-arbitration waivers in consumer contracts as unconscionable” because it stood “as an obstacle to the accomplishment and execution of the full purposes and objectives of [the FAA]” to ensure the enforcement of agreements to arbitrate according to their terms. Id. at 1746, 1753. Our holding in Feeney II derived, at […]