I. Although the waiver of the personal right to
an Article III adjudication and other fundamental
constitutional rights must be voluntary, the Sixth
Circuit here and other federal courts have rejected the
applicability of the heightened constitutional
standard for voluntary consent in cases involving
arbitration under the Federal Arbitration Act (FAA),
and instead employ a substantially less rigorous
analysis of unconscionability under state contract law
to find the waiver enforceable.

Question 1 is: Whether the voluntariness of the
waiver of the personal right to an Article III
adjudication under the Class Action Fairness Act of
2005 (CAFA) and consent to non-Article III arbitration
under the FAA is governed by the heightened
constitutional standard, or by the state law of contract
unconscionability?

II. CAFA, 28 U.S.C. § 1332(d), commands the
federal courts to exercise jurisdiction over class
actions with 100 or more class members whose
aggregated claims against a defendant that is a citizen
of a different state exceed $5,000,000, as here. CAFA's
express purposes include "restor[ing] the intent of the
framers... by providing for Federal court
consideration of interstate cases of national
importance under diversity jurisdiction," and
"benefit[ting] society by ... lowering consumer prices."
CAFA § 2(b), 119 Stat. 5. The Sixth Circuit held that
it could give effect to both CAFA and the FAA by
exercising CAFA jurisdiction to compel one bilateral
arbitration under the FAA, thereby rendering CAFA's
command to adjudicate class actions and its express
purposes nugatory.

Question 2 is: Whether CAFA and its express
purposes inherently and irreconcilably conflict with
and override the FAA?

Whether the voluntariness of the waiver of the personal right to an Article III adjudication under the Class Action Fairness Act of 2005 (CAFA) and consent to non-Article III arbitration under the FAA is governed by the heightened constitutional standard, or by the state law of contract unconscionability?