MARCUS, Circuit Judge:
The Plaintiffs in this case are customers of Defendant AT&T Mobility, LLC ("ATTM"),
The district court granted ATTM's motion to dismiss the complaint and compel arbitration, holding that Florida public policy did not create a blanket prohibition on class action waivers, and that under the particular facts of the case, the arbitration provision was enforceable in full, where the arbitral forum preserved all statutory remedies, the provision did not limit the consumers' right to recoup attorney's fees, ATTM agreed to pay all costs of arbitration, and no confidentiality agreement prevented the Plaintiffs from notifying other ATTM customers of their potential claims. This timely appeal ensued.
After this Court heard oral argument in this case,
Consumers wishing to obtain cellular telephone service from ATTM must agree to a Wireless Service Agreement ("WSA"),
[Dkt. 37-15, at 6.]
Notwithstanding the mandatory arbitration provision in their WSAs, the Plaintiffs filed an Amended Class Action Complaint against ATTM in the United States District Court for the Middle District of Florida. [Compl., Dkt. 5.] The Plaintiffs alleged that ATTM violated the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"),
ATTM moved to dismiss the complaint and compel arbitration pursuant to the arbitration agreement that the Plaintiffs had signed. [Dkt. 31.] The Plaintiffs countered that the arbitration provision was unenforceable, on the ground that the class action waiver embedded in the provision hindered the remedial purposes of FDUTPA by effectively immunizing ATTM from liability for unlawful business practices, in violation of public policy.
The district court granted ATTM's motion to dismiss the complaint and compel arbitration, holding that ATTM's class action waiver did not violate Florida public policy. See Cruz v. Cingular Wireless, LLC, No. 2:07-cv-714-FtM-29DNF, 2008 WL 4279690, at *4 (M.D.Fla. Sept. 15, 2008). The district court observed that in general, under Florida law, "an arbitration agreement is unenforceable for public policy reasons if it defeats the remedial purpose of the statute upon which the action is based, or deprives the plaintiff of the ability to obtain meaningful relief." Id. at *2 (citing Alterra Healthcare Corp. v. Estate of Linton, 953 So.2d 574, 578 (Fla. Dist.Ct.App.2007); Powertel, Inc. v. Bexley, 743 So.2d 570, 576 (Fla.Dist.Ct.App. 1999)). The court then discerned that although FDUTPA claims are susceptible to class action litigation, FDUTPA does not confer a blanket, non-waivable right to class representation. Id. at *3 (citing Fonte v. AT&T Wireless Servs., Inc., 903 So.2d 1019, 1024-25 (Fla.Dist.Ct.App. 2005)). The court noted that Florida intermediate appellate courts
With this framework in mind, the district court examined the arbitration agreement at issue between ATTM and the Plaintiffs, and concluded it was valid and enforceable under Florida law, because (1) "there is no question that the arbitration agreement provides all the same remedies available to plaintiffs under FDUTPA, as it states in relevant part that `[a]rbitrators can award the same damages and relief that a court can award,'" id. at *3 (quoting arbitration agreement [Dkt. 37-5, at 20]); (2) the agreement allows a consumer who prevails in arbitration to recover attorney's fees and costs from ATTM without limitation, and even allows an award of double attorney's fees in certain instances, id.; (3) there was no confidentiality rule preventing the Plaintiffs from disseminating information about their claims to other potential claimants, id. at *4; and (4) ATTM agreed to bear all costs of arbitration regardless of which party prevailed, id.
We review de novo an order granting a motion to dismiss a complaint and compel arbitration. Dale v. Comcast Corp., 498 F.3d 1216, 1219 (11th Cir.2007). The issue before us is whether the arbitration agreement's class action waiver is unenforceable as a violation of Florida public policy. We must affirm the district court's order compelling individual arbitration if either the class action waiver is enforceable under Florida law or the FAA preempts Florida law to the extent it would invalidate the waiver.
The FAA makes written agreements to arbitrate "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. This provision reflects a "liberal federal policy favoring arbitration," Concepcion, 131 S.Ct. at 1745 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)), and requires courts to "rigorously enforce agreements to arbitrate" according to their terms. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); accord Concepcion, 131 S.Ct. at 1745.
Under the so-called saving clause of FAA § 2, an arbitration agreement may be invalidated by "generally applicable contract defenses, such as fraud, duress, or unconscionability." Concepcion, 131 S.Ct. at 1746 (quotation omitted). However, the saving clause does not authorize the invalidation of agreements to arbitrate "by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue." Id. Thus, "[a]lthough [FAA] § 2's saving clause preserves generally applicable contract defenses," it does not "preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives." Id. at 1748.
In Concepcion, the Supreme Court considered a putative class action brought by ATTM subscribers, who sought to avoid enforcement of the very same arbitration
The Supreme Court did not dispute that California law, as enunciated by the California Supreme Court in Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d 1100, would invalidate the class action waiver as unconscionable, based on its satisfaction of a three-part requirement laid out in Discover Bank: (1) "the waiver is found in a consumer contract of adhesion" drafted by a party that has superior bargaining power; (2) "disputes between the contracting parties predictably involve small amounts of damages"; and (3) "it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money." Concepcion, 131 S.Ct. at 1746 (quoting Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d at 1110). However, the Supreme Court concluded that the triggering conditions of California's Discover Bank rule imposed no effective limit on its application. In particular, the Court called the requirement that claims be predictably small "toothless and malleable," and found the other two requirements universally satisfied, at least in the consumer context, as "the times in which consumer contracts were anything other than adhesive are long past," and "the latter [third requirement] has no limiting effect, as all that is required is an allegation." Id. at 1750. The Court thus implied that although the Discover Bank rule was cast as an application of unconscionability doctrine, in effect, it set forth a state policy placing bilateral arbitration categorically off-limits for certain categories of consumer fraud cases, upon the mere ex post demand by any consumer. See id.
The Court then held that, like preferring fact-finding to be conducted by a jury, this state-imposed policy preference "interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." Id. at 1748. Declaring that "[t]he overarching purpose of the FAA . . . is to ensure the enforcement of arbitration agreements according to their
Here, the Plaintiffs have argued that ATTM's class action waiver is unenforceable because it would exculpate ATTM from liability under state law and would thus defeat the remedial purpose of FDUTPA, in violation of public policy. Appellant Br. at 17. In particular, the Plaintiffs assert that the arbitration provision at issue hinders the remedial purpose of FDUTPA because the vast majority of these numerous, small-value claims against ATTM will go unprosecuted unless they may be brought as a class. The Plaintiffs identify two reasons why numerous, potentially meritorious RAP-based claims against ATTM will slip through the cracks if the class action waiver stands: first, attorneys will refuse to represent ATTM consumers for these legally complex but small-value claims unless they can be aggregated; and second, absent class-action notice procedures, the vast majority of ATTM customers will never know that their rights have been violated. Appellant Br. at 47-54. At bottom, the Plaintiffs argue that because FDUTPA is a remedial consumer statute—intended to have deterrent as well as compensatory effect—public policy dictates that their claim is of a sort that "must proceed as a class action or not at all." Appellant Br. at 16 (alteration and internal quotation marks omitted).
However, the Concepcion Court specifically rejected this public policy argument, which was expressly made by the dissent in that case: "The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Concepcion, 131 S.Ct. at 1753 (citation omitted). Thus, in light of Concepcion, state rules mandating the availability of class arbitration based on generalizable characteristics of consumer protection claims—including that the claims "predictably involve small amounts of damages," id. at 1746 (quoting Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d at 1110), that the company's deceptive practices may be replicated across "large numbers of consumers," id. (quoting Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d at 1110), and that many potential claims may go unprosecuted unless they may be brought as a class, id. at 1753—are preempted by the FAA, even if they may be "desirable," id. Therefore, to the extent that Florida law would be sympathetic to the Plaintiffs' arguments here, and
In their supplemental briefs, the Plaintiffs offer two arguments for why Concepcion does not control the outcome of this case. First, they say that Concepcion only preempts inflexible, categorical state laws that mechanically invalidate class waiver provisions in a generic category of cases, without requiring any evidentiary proof regarding whether parties could vindicate their statutory rights in arbitration. Appellant Supp. Br. at 4-6; Appellant Supp. Reply at 3-4. They argue that this case escapes Concepcion's preemptive effect, because Florida law, unlike California law, invalidates class action bans only when the individualized facts of the case demonstrate that the ban is functionally exculpatory. Appellant Supp. Br. at 5; Appellant Supp. Reply at 4. Second, they claim that Concepcion was only concerned with state laws that impose nonconsensual class arbitration on parties. Because ATTM's blowup provision assures that ATTM will not be forced into class arbitration—but only class litigation—they claim that Concepcion is not implicated here. Appellant Supp. Br. at 15-18; Appellant Supp. Reply at 9-10. Neither argument is successful.
The second argument is disposed of easily. It would be anomalous indeed if the FAA—which promotes arbitration, see Concepcion, 131 S.Ct. at 1749—were offended by imposing upon arbitration nonconsensual procedures that interfere with arbitration's fundamental attributes, but not offended by the nonconsensual elimination of arbitration altogether. Cf. id. at 1747 ("When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA."). In fact, the parties in Concepcion faced no risk of being forced into class arbitration either, because nonconsensual class arbitration was already prohibited under Stolt-Nielsen. See 130 S.Ct. at 1775 (holding that "a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for
The Plaintiffs' first argument presents more difficulty. It is true that the Plaintiffs here have presented a factual record not present in Concepcion—the affidavits of three Florida consumer law attorneys who attested that they would not represent consumers on an individual basis in pursuing their RAP-based claims against ATTM. All three examined both ATTM's arbitration agreement (including its allegedly pro-consumer features) and the Plaintiffs' complaint, and concluded that it would not be cost-effective for them to pursue such claims against ATTM except on an aggregated basis. [See Dkt. 43 at 6-9, 43-2, 43-3, 43-4.] The Plaintiffs also provide some statistical evidence—which the consumer-plaintiffs also presented in Concepcion—showing the "infinitesimal" percentage of ATTM subscribers who have arbitrated a dispute with ATTM, "starkly demonstrat[ing] the claim-suppressing effect of the [class action] ban." Concepcion Resp. Br. at *4, *5, *40; see Appellant Br. at 13 (noting that "only 0.000007% of ATTM customers filed a notice of dispute against ATTM"); Appellant Supp. Br. at 14 (same).
However, at least as applied to the facts of this case, we believe that faithful adherence to Concepcion requires the rejection of the Plaintiffs' argument. The Plaintiffs' evidence goes only to substantiating the very public policy arguments that were expressly rejected by the Supreme Court in Concepcion—namely, that the class action waiver will be exculpatory, because most of these small-value claims will go undetected and unprosecuted. The Court observed that California's Discover Bank rule too had "its origins in California's unconscionability doctrine and California's policy against exculpation." Concepcion, 131 S.Ct. at 1746; see also Concepcion Resp. Br. at *19 (noting that "California's unconscionability doctrine incorporates the venerable prohibition on exculpatory clauses," and quoting state statute rendering unenforceable "[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud") (quoting Cal. Civ.Code § 1668 (alteration in original)). Indeed, the Concepcion consumer-plaintiffs' brief to the Supreme Court repeatedly emphasized that California's rule was a "fact-specific" inquiry that only screened out class action bans "in circumstances where they would. . . be exculpatory." Concepcion Resp. Br. at *20; see also id. at *12 ("The FAA favors arbitration, not exculpation.").
The Court found, however, that the California rule swept too broadly, in subjecting whole classes of claims to mandatory class procedures. The rule suggested by the Plaintiffs here would equally encompass the field of small-value consumer fraud claims. Indeed, the Plaintiffs all but concede that their rule would preserve mandatory class actions for all "small but numerous" consumer claims. [See Dkt. 43 at 16 ("Clearly a contractual provision precluding class relief for small but numerous FDUTPA claims against [ATTM] impermissibly frustrates the remedial purposes
Moreover, we need not reach the question of whether Concepcion leaves open the possibility that in some cases, an arbitration agreement may be invalidated on public policy grounds where it effectively prevents the claimant from vindicating her statutory cause of action. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ("[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function."); cf. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (recognizing that "large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum"). Even if the Mitsubishi vindication principle applies to state as well as federal statutory causes of action, see Booker v. Robert Half Int'l, Inc., 413 F.3d 77, 79, 81-83 (D.C.Cir.2005) (Roberts, J.), and even if it could be applied to strike down a class action waiver in the appropriate circumstance,
In addition, like the plaintiffs in Concepcion, the Plaintiffs here do not allege any defects in the formation of the contract, aside from its generally adhesive nature, which alone is insufficient to invalidate a consumer contract. See id. at 1750 ("[T]he times in which consumer contracts were anything other than adhesive are long past."); see also id. at 1753 (Thomas, J., concurring) ("As I would read it, the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration agreement, such as by proving fraud or duress.").
In light of Concepcion, our resolution of this case does not depend on a construction of Florida law. To the extent that Florida law would require the availability of classwide arbitration procedures in this case—in spite of the parties' agreement to submit all disputes to arbitration "on an individual basis" only [Dkt. 37-15, at 1]— simply because the case involves numerous small-dollar claims by consumers against a corporation, many of which will not be brought unless the Plaintiffs proceed as a class, such a state rule is inconsistent with and thus preempted by FAA § 2. See Concepcion, 131 S.Ct. at 1748; cf. Day v. Persels & Assocs., LLC, No. 8:10-CV-2463-T-33TGW, 2011 WL 1770300, at *5 (M.D.Fla. May 9, 2011) ("The Florida Supreme
The district court's order dismissing the Plaintiffs' complaint and compelling arbitration of the Plaintiffs' claims is, therefore, AFFIRMED.
Concepcion, 131 S.Ct. at 1744; see also Appellee Br. at 2-3; [Dkt. 37-6, at 17-21]. In spite of these pro-consumer features, the Plaintiffs argue that ATTM can effectively avoid ever paying attorney's fees or the $5,000 premium award simply by refunding the disputed amount (or a little more) to the customer during the mandatory 30-day waiting period between when ATTM receives the customer's "Notice of Dispute" in the mail and when the customer is permitted to commence arbitration by mailing a "Demand for Arbitration" to the American Arbitration Association and ATTM. Appellant Br. at 11. Because few consumers will pursue their claims that far, ATTM thus "pay[s] a handful of small claims and in the process get[s] away with stealing hundreds of millions of dollars." Appellant Br. at 10 (quoting Declaration of Marcus Viles [Dkt. 43-2, at 4]); see also Concepcion, 131 S.Ct. at 1760 (Breyer, J., dissenting) ("[A]s the Court of Appeals recognized, [ATTM] can avoid the [premium] payout (the payout that supposedly makes the [plaintiffs]' arbitration worthwhile) simply by paying the claim's face value, such that `the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.'") (quoting Laster v. AT & T Mobility LLC, 584 F.3d 849, 855, 856 (9th Cir.2009), rev'd sub nom. Concepcion, 131 S.Ct. 1740).