BYU Law Review


In the wake of AT&T Mobility LLC v. Concepcion, parties opposing enforcement of an arbitration agreement with a class waiver increasingly relied on the prohibitive-costs-based vindication of statutory rights defense. The Supreme Court recently held in American Express Co. v. Italian Colors Restaurant that the effective vindication doctrine cannot be used to invalidate an otherwise enforceable arbitration agreement with class-action waiver simply because the opponents have no “economic incentive” to pursue individual arbitration. However, the Court’s bases for this holding are unclear and unnecessarily call into question the very existence of the “effective vindication doctrine.” This Article examines the historical underpinnings of the prohibitive-costs-based defense and the different frameworks courts have employed to analyze those costs. These approaches can be summarized as (1) the subjective approach, which compares the costs of arbitration to the litigant’s ability to pay; (2) the comparative approach, which compares the costs of arbitration to the costs of proceeding in litigation; (3) the cost/benefit approach, which compares the costs of arbitration to the likelihood of the plaintiff’s potential recovery; and (4) the incentive-based approach, which considers whether the plaintiffs or their potential attorneys have any incentive, given the costs involved, to pursue their claims. This Article concludes that the comparative approach is the only approach that is both grounded in the text of the Court’s vindication of statutory rights jurisprudence and serves the purposes of the FAA and enforcing statutory rights.


© 2013 Brigham Young University Law Review