Life After 'Concepcion': Two Courts Reach Different Results

What is one to make of the Supreme Court's decision in AT&T Mobility LLC v. Concepcion, – U.S. – ,131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), and what are courts taking from that decision in making subsequent rulings? Two cases decided after remand by the Supreme Court following Concepcion come out in opposite directions, and leave companies that want their waiver-of-class-arbitration clauses to come within Concepcion and not fall outside its protection without predictability as to the enforceability of those clauses.

Concepcion held that § 2 of the Federal Arbitration Act requires enforcement of an arbitration agreement "save upon such grounds as exist at law or in equity for the revocation of any contract," and does not "preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives." 131 S.Ct. 1748. The Concepcions had purchased AT&T cell phone service that was advertised to include free phones. Upon being charged sales tax on the