Feeney v. Dell Inc.

In Feeney v. Dell, Inc., the Supreme Judicial Court of Massachusetts held, before the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, that a class action waiver in an arbitration agreement was unenforceable. Following Concepcion, a lower Massachusetts court held in the ongoing proceedings in Feeney that the class action waiver remained unenforceable because the factual record demonstrated that, under the circumstances in the case, the availability of a class action was essential to the vindication of the substantive right asserted by the plaintiff. The Massachusetts Supreme Judicial Court granted review in order to determine the continued viability of its earlier Feeney ruling. We joined with Public Justice in filing an amicus curiae brief arguing that where there is a factual record demonstrating that a class action is necessary to the protection of the substantive right at issue, Concepcion does not require enforcement of a class action ban in an arbitration clause. The Massachusetts Supreme Judicial Court first accepted our arguments, and then reversed itself following the U.S. Supreme Court’s decision in American Express v. Italian Colors and held the provision enforceable.