Law360 alerted me to one of the first significant decisions applying the Supreme Court’s opinion in AT&T Mobility v. Concepcion (see my blog post about the Concepcion decision) – the Northern District of California decision in In re California Title Insurance Antitrust Litigation, No. 08-01341 JSW, slip op. (N.D. Cal. June 27, 2011).  (I don’t have a cite or link to this slip opinion online, so e-mail me if you would like a copy.) 

This case involves antitrust claims that the defendants, who allegedly dominate the title insurance market in California and nationwide, allegedly manipulated and controlled prices and fixed prices at unfairly high rates.  There were arbitration provisions either in the title insurance policies or the loan documents.  (The opinion is not particularly clear with respect to how arbitration provisions in loan documents would apply but the court concludes they would.)

The court grants a motion to compel arbitration, explaining that Concepcion “held that courts must compel arbitration even in the absence of the opportunity for plaintiffs to bring their claims as a class action.”  (Slip op. at 4.)  The plaintiffs argued that the defendants had waived their right to arbitration by not raising it earlier in the case, but the court concluded that, prior to Concepcion, such an argument would have been futile under the California Supreme Court’s Discover Bank rule.  The court also found that the plaintiffs had failed to show prejudice from the failure to raise the arbitration issue earlier.  The court notes that Concepcion still allows plaintiffs to raise “generally applicable contract defenses” to arbitration agreements that do not focus on the fact that the agreement is an arbitration agreement.  It does not appear that such a defense was raised by the plaintiffs in this case, however.

The takeaway I see here is that title insurance companies (and other insurers) involved in pending class actions should consider seeking to compel an arbitration of the named plaintiffs’ claims, even if the litigation is substantially advanced.  It may not be too late to take advantage of Concepcion.