Does The Federal Arbitration Act Implicate "State Action"?
"No" is the short answer. However, read on if you want to know about the novel argument made by consumer plaintiffs in Roberts v. AT&T Mobility, No. 16-16915 (9th Cir. 12/11/17) (Tallman, Hawkins, Fletcher).
In Roberts, AT&T moved to compel arbitration against putative class action consumer plaintiffs, based on the ruling in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). At first blush, one might consider the issue of the validity of AT&T's arbitration clause to have been settled by Concepcion, which held that the Federal Arbitration Act (FAA) preempted state law deeming AT&T's arbitration to be unconscionable. However, the plaintiffs in Roberts tried a different tack, challenging AT&T's arbitration clause on the constitutional ground that it violated the First Amendment Petition Clause.
The Petition Clause guarantees that we can petition the government to redress grievances without fear of retribution. Essentially, the plaintiffs argued that judicial and legislative encouragement of arbitration is so strong, through the enactment of the FAA and Supreme Court enforcement of the FAA to compel arbitration, that the government deprived the plaintiffs of the right to petition by depriving them of their ability to have a court adjudicate their claims.
The threshold question in deciding the First Amendment Petition Clause claim is whether state action is even involved. The district court did not find state action, and the Ninth Circuit agreed. The Court of Appeals concluded that AT&T's conduct is not attributable to the state, and, quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982), "private parties [do not] face constitutional litigation whenever they seek to rely on some [statute] governing their interactions with the community surrounding them."
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