The arbitrability of competition claims has been the subject of debate for California has traditionally been protective of consumers with regard to class action waivers and class arbitration. However, since AT&T Mobility LLC v. Concepcion came out in 2011, state courts have been compelled to enforce arbitration provisions in private agreements. Two years later, American Express Co. v. Italian Colors Restaurant (“Amex”) solidified the power of the Concepcion opinion by eliminating the second of two main arguments courts had been using to render class action waivers and arbitration agreements invalid.
This Article examines the extent to which Concepcion and Amex affected California’s lower courts, consumers, and businesses. By preempting longstanding state policy, the Federal Arbitration Act has infused substantial power in contract arbitration and class action provisions and rendered consumer arguments relying on state law ineffective. A closer look at consumer versus nonconsumer contracts and a comparison of contracts across different industries over the next several years will provide a more accurate picture of the changes effected by these decisions.