Upcoming from the Ky Supreme Court – Enforcement of
Class Arbitration Waivers
In Schnuerle v. Insight Communications Co., L.P., ____ S.W.3d ____, 2010 WL 5129850, 2010 Ky LEXIS 288 (Ky. 2010), the Kentucky Supreme Court, in reliance upon a decision of the 9th Circuit Court of Appeals (Discover Card), struck down a waiver of class action arbitration set forth in a consumer contract. Subsequent to that ruling, in ATT Mobility LLC v. Concepcion, 563 U.S. ____ (2011), the United States Supreme Court upheld waivers of class action arbitration, specifically overruling the Discover Card decision relied upon by the Kentucky Supreme Court.
This matter is going back to the Kentucky Supreme Court to be argued on October 19 (2008-SC-789). There will be consideration as to whether the Concepcion decision does or does not require a reversal of the Kentucky Supreme Court’s in Schnuerle to the effect that the waiver of class action arbitration as set forth in the agreement with Insight Communications will or will not be enforceable.
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