Missouri Title Loans v. Brewer: SCOTUS Denies Certiorari in Concepcion Follow-Up

Since the Supreme Court's decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___ (4/27/11) (discussed here), we have seen differing opinions on whether Concepcion overruled the California Supreme Court's decision in Gentry v. Superior Court (2007) 42 Cal.4th 443.  

As a reminder, Gentry held that the right to class arbitration is -- "at least in some cases" -- a necessary minimum requirement for the arbitration of non-waivable statutory rights because requiring individual arbitration may have an exculpatory effect, undermining the enforcement of those statutory rights.

The Supreme Court of the United States yesterday denied certiorari in a case that could have ended the debate over Concepcion and Gentry. In Brewer v. Missouri Title Loans, Inc., the Supreme Court of Missouri held that a class arbitration waiver in a loan agreement was unconscionable and unenforceable and that the appropriate remedy was to strike the entire arbitration agreement.  The Court reasoned that striking only the class arbitration waiver still would not allow for class arbitration (citing Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. ___  (2010)), and because a plaintiff would not be able to find counsel to represent her in an individual arbitration, she would have "no meaningful avenue of redressing complicated statutory and common law claims."  In other words, individual arbitration would have an exculpatory effect and undermine enforcement of the laws at issue.  

The defendant petitioned for certiorari, framing the issues as follows:  

1. Whether the Federal Arbitration Act ("FAA") preempts state law finding an arbitration agreement to be unconscionable when the plaintiff cannot vindicate her statutory rights without a class action; and
2. Whether the Supreme Court of Missouri, on remand from the Supreme Court, contravened the FAA by again refusing to enforce Missouri Title Loans' arbitration agreement, this time based upon alleged evidence submitted by the plaintiff aimed at substantiating the very public policy arguments that were held to be preempted in AT&T Mobility LLC v. Concepcion.  

I will not try to read the tea leaves on that one.  You can find more information, including the underlying decision and the parties' briefs, on SCOTUSblog.