In NAACP of Camden County East v. Foulke Management Corp., New Jersey appellate court finds reasons to distinguish Concepcion

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When you stamp down too hard, stuff leaks out the sides.  AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) was the boot.  Since then, we've been waiting to see what would leak out the sides.  There has been a good deal of discussion about the ramifications of Concepcion.  While Concepcion may make things harder for class actions, the severity of the opinion is also inspiring interesting challenges to arbitration agreements on many fronts.  In NAACP of Camden  County East v. Foulke Management Corp. (August 2, 2011), the Appellate Division of the New Jersey Superior Court concluded that convoluted and inconsistent arbitration provisions in an automobile purchase contract could not be enforced, reversing the trial court's order directing the matter to individual arbitration.

The opinion focused heavily on the concurring opinion of Justice Thomas for its conclusion that a confusing consumer contract provision related to arbitration would not be enforced:

Thus, in the aftermath of AT&T Mobility, state courts remain free to decline to enforce an arbitration provision by invoking traditional legal doctrines governing the formation of a contract and its interpretation. Applying such core principles of contract law here, we must decide whether there was mutual assent to the arbitration provisions in the dealership's contract documents. As part of that assessment, we must examine whether the terms of the provisions were stated with sufficient clarity and consistency to be reasonably understood by the consumer who is being charged with waiving her right to litigate a dispute in court.

Slip op., at 31.  The Court found ample evidence for the proposition that the consumer could not have reasonably understood the arbitration provisions.  The Court did take a moment to opine that the trial court was correct when it found that a class action waiver could not be invalidated on public policy grounds.  But the Court then found that the issue was irrelevant to the outcome, since the provisions were unenforcable on formation grounds.

Brown v. Ralphs Grocery Company decided, but dodges the Gentry-Concepcion issue and the NLRA prohibition on concerted activity bans

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The Court of Appeal (Second Appellate District, Division Five) issued its opinion today in Brown v. Ralphs Grocery Company (July 12, 2011).  The opinion is notable for what it doesn't address.  As mentioned previously here, the Court had requested supplemental briefing on the issue of whether Concepcion dished out the Discover Bank treatment to Gentry v. Superior Court (2007) 42 Cal.4th 443.  After a few feverish days of writing an amicus brief (for CAOC) focused primarily on the fact that the National Labor Relations Act prohibits enforcement of any contract that would impede concerted activity by employees (including class actions to improve wages and working conditions), I was disappointed to see that the Court dodged the entire question, deciding the matter on the ground that a factual showing had not been made in the trial court to support the Gentry factors.  There is also a split decision discussion of how PAGA claims interact with motions to compel arbitration.

On balance, this non-opinion doesn't do much to answer the question of how Concepcion interacts with wage & hour class actions and the Gentry decision.  It will take another appellate vehicle to properly present those questions for review.

Concepcion has no application in many employment cases

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About a week ago, on behalf of Consumer Attorneys of California ("CAOC"), I filed an amicus curiae brief in support of the plaintiff in Brown v. Ralphs Grocery Company.  In Brown, after oral argument, the Court of Appeal requested supplemental briefs on the question of whether AT&T Mobility LLC v. Concepcion (April 27, 2011) precludes the Gentry v. Superior Court (2007) 42 Cal.4th 443 defense to certain arbitration agreements.  After determining that the parties had not already addressed the issues, CAOC presented several bases for rejecting the contention that Concepcion overruled Gentry, including the fact that a bar on class actions violates the National Labor Relations Act's protection of concerted action by employees to improve their wages and working conditions.  You can view the brief viat the Spiro Moss website here.

Other attorneys at Spiro Moss contributed to the brief, including Dennis F. Moss (who conceived of the argument involving the NLRA), Gregory N. Karasik, and J. Mark Moore.  David M. Arbogast of Arbogast & Berns LLP also contributed to CAOC's brief.

AT&T finally allows (err, finishes testing) updates for two of its Windows Phone 7 handsets

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The Windows Phone 7 update debacle is crawling to its final resting place (at least for the current set of updates...for some U.S. customers...on AT&T).  As of April 19, 2011, Microsoft was allowed by AT&T to deliver updates to Samsung Focus and LG Quantum owners (but not the HTC Surround).  Microsoft engaged in some speculation about whether the carrier-specific updates could be received by phones that had been updated though "hacker" means, such as the ChevronWP7.Updater technique delivered by Chris Walsh (who was, allegedly, told by Microsoft that his update method would prevent phones from receiving future updates), when it suggested to the public (contrary to what it told Walsh) that such updating techniques might block future updates.  As an aside, Chris became a verb when phone treated to his update tool were characterized as "Walshed."

Well, I can now confirm that the fears of brickdom were greatly overstated.  My Samsung Focus, which was somehow updated (Walshed) with the ChevronWP7.Updater tool (I am shocked, shocked to learn of "hacker" updates on my phone), recevied and applied the carrier-specific and OEM firmware updates through the normal channel yesterday.  The AT&T address book tool was installed.  The Focus-specific firmware was also updated.

As far as the potential of Windows Phone 7 for the legal set, this OS will need the "Fall" update, called "Mango," before it will have all the tools in place that most attorneys/IT departments/corporations would want for a wide deployment.  New development tools are about to be released, with access to a huge number of new APIs.  Major software developers should be able to deliver much improved productivity tools with the Mango release this fall.  What I can't wait to...read about...is whether the ChevronWP7.Updater tool that evidently worked very well for the current round of updates will be able to pull the Mango update as soon as it is ready.  This would allow phone owners to bypass the many months of "testing" that AT&T will perform.  That's right - I can't wait to read about that.

Microsoft finally admits that carriers can block updates to Windows Phone 7 without using word "block"

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Not that anyone believed otherwise, but Microsoft admitted this morning at MIX'11 that the update process for Windows Phone 7 can be stifled by mobile carriers.  The Live Blog at Day 2 of MIX'11 in Las Vegas includes comments from a number of reporters that specialize in Microsoft coverage.  My Windows Phone 7 (running the NoDo update on an AT&T phone thanks to the intervening magic of technology pixies) is fantastic, but it's hard to recommend this train wreck to law firms as the mobilie solution for attorneys.  I'll take a wait-and-see-and-don't-hold-my-breath approach as we run through this firedrill again in the fall with the much more substantial "Mango" update.

If AT&T won't update Windows Phone 7 phones, you can do it yourself

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Not that I'd ever advocate circumventing a mobile carrier because, unlike virtually every other mobile carrier on the planet, it won't release operating system updates for Windows Phone 7 (yes, AT&T, you are that carrier), but there is now a handy tool that let's you do just that.

Windows Phone Secrets has a story on this simple do-it-yourself utility.  Chris Walsh wrote the program that allows the update in spite of a recalcitrant carrer and provide the utility at his blog.  Simple Mobile Review provides a documented, step-by-step guide to using the utility.

Conspiracy theories already exist, but the utility Chris wrote was only possible after Microsoft released a support tool for Windows Phone 7.  Maybe it was coincidental that the tool allowed easy bypass of a non-cooperative carrier.  Or maybe Microsoft put a tool out there knowing precisely what could be done with it.  Seems a bit much to say that it was lucky coincidence that a tool capable of circumventing carrier update blocks was so easy to use for that purpose that it took all of one day to write the program to implement it for that purpose.  But I'm no programmer, so how would I know? 

I consider this (and by "this," I mean jabbing a stick in AT&T's eye) to be part of my role as a pro-consumer advocate.  But these tips are about self-empowerment.

Alvarez v. T-Mobile USA, Inc. stayed pending Concepcion

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United States District Court Judge William B. Shubb (Eastern District of California) stayed a consumer class action pending against T-Mobile USA, Inc. until a decision is rendered in AT&T Mobility LLC v. Concepcion, --- U.S. ----, 130 S.Ct. 3322 (2010).  Alvarez v. T-Mobile USA, Inc. (E.D. Cal. December 7, 2010).  As with all cell phone companies bent on world domination and ultimate evil, T-Mobile's consumer contract includes an arbitration provision with a class action waiver.

Court certifies Apple-AT&T monopoly abuse suit

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United States District Court Judge James Ware, of the Northern District of California, certified certain claims in a class action lawsuit alleging that the 5-year iPhone exclusivity arrangement between Apple and AT&T created a monopoly of sorts.  WindowsITPro has additional, interesting comments here.  I feel like such a victim.  Luckily, they didn't get my money for the iPhone 4 yet, which apparently has a bit of an issue with its exposed antennas.