In AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), the U.S. Supreme Court set forth guidelines strongly supporting the enforcement of arbitration provisions under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. These cases present a hurdle for consumers and employees who are trying to vindicate their rights in court or through class actions. While both cases are binding precedent, lower courts have recently sought to narrow the perceived broad scope of those rulings. In general, the courts are taking a hard look at how contracts were formed, especially contracts of adhesion, which govern most consumer and employment relationships.
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