[author: Allison Kirkwood]
In January 2010, the Eleventh Circuit certified questions to the Florida Supreme Court regarding class actions waivers in consumer contracts in Pendergast v. Sprint Nextel Corp., 592 F.3d 1119 (11th Cir. 2010). More specifically, the Eleventh Circuit certified questions to the court asking how contractual unconscionability should be analyzed under Florida law and whether a class action waiver in an agreement to arbitrate in a consumer contract for cellular telephone service is unconscionable under Florida law. In April 2011, the United States Supreme Court addressed these issues in AT&T Mobility LLC v. Concepcion, 563 U.S. __ (2011), and held that state law decisions that find class action waivers in arbitration clauses to be unconscionable or void as against public policy were preempted by the Federal Arbitration Act. Thus, despite state laws to the contrary, Concepcion allows companies to enforce contract provisions that require customers to arbitrate their disputes individually.
In light of the Supreme Court’s intervening decision in Concepcion, on July 17, 2012, the Florida Supreme Court declined jurisdiction to decide the certified questions and returned Pendergast to the Eleventh Circuit. The Eleventh Circuit itself had previously stated that “had we had Concepcion before us at the time of our initial consideration of this appeal, we would not have certified questions to the Florida Supreme Court.”