As we were waiting for SCOTUS’s decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts.  In an opinion that could be a blueprint for other plaintiff-friendly states, the supremes in Massachusetts held that courts may invalidate arbitration agreements that preclude class actions if a plaintiff proves he or she “effectively cannot pursue a claim against the defendant in individual arbitration.”  Feeney v. Dell Inc., __ N.E.2d ___, 2013 WL 2479603 (Mass. June 12, 2013).

The Massachusetts plaintiffs in Feeney allege that Dell charged and collected money for a state sales tax that Massachusetts did not actually impose.  The putative class brought the lawsuit in 2003 alleging violation of Massachusetts’s consumer protection act, which specifically provides for class actions.  Dell successfully moved to compel individual arbitration, based on the language of its contract (which mandated individual arbitration at the now defunct National Arbitration Forum).

This case has been up to the Massachusetts high court twice.  The first time, in 2009, it invalidated the arbitration clause after concluding that class action prohibitions in consumer arbitration agreements contravene Massachusetts public policy.  After the case was remanded for further proceedings, however, SCOTUS decided Concepcion, and the validity of the class arbitration waiver had to be considered anew.

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