News & Analysis as of

Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid

Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to...more

California Supreme Court Allows Arbitration Agreements With Class Waivers

On Monday, June 23, 2014, the California Supreme Court held in Iskanian v. CLS Transportation of Los Angeles, LLC that a state’s refusal to enforce an arbitration agreement that waives the right to class proceedings on public...more

Employers Should Now Run—Not Walk—Toward Adopting Arbitration Agreements in California

Yesterday, the California Supreme Court issued its long-awaited decision in Iskanian v. CLS Transp. Los Angeles, LLC, upholding class action waivers in employment arbitration agreements. This means that the U.S. Supreme...more

California Supreme Court Authorizes Class Action Waivers In Arbitration Agreements

On June 23, 2014, the California Supreme Court held that employees may expressly waive their ability to bring class actions when agreeing to arbitrate disputes with their employer. In Iskanian v. CLS Transportation Los...more

California Supreme Court Upholds Class Waivers In Employee Arbitration Agreements, But Not Waivers Of Representative Claims Under...

Yesterday, the California Supreme Court, in Iskanian v. CLS Transportation Los Angeles, LLC (Case No. S204032), upheld a class action waiver in an arbitration agreement between an employee and his employer. The Supreme Court...more

California High Court Finds Class Action Waivers Enforceable; Waiver of PAGA Action is not Enforceable

Acknowledging the U.S. Supreme Court's decision in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), to be a game-changer, the California Supreme Court has held that the Federal Arbitration Act (FAA) preempts a state's...more

Another California Court Does Backflips To Thwart Arbitration And Elevate The Class-Action Device

The hostility of some California courts to arbitration—and their resistance to preemption under the Federal Arbitration Act (FAA)—has produced nearly three decades of U.S. Supreme Court reversals. The most recent is AT&T...more

Waiting for Iskanian, Part 1 -- Gentry, Discover Bank and Concepcion

On Thursday, the California Supreme Court will hear arguments in the highly-anticipated Iskanian v. CLS Transportation Los Angeles, LLC. Iskanian has produced several inches worth of paper from a host of interested parties in...more

Waiting for Iskanian, Part 4: Friends of the Defendant

As we await Thursday's oral argument before the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, our series of preview posts continues. This time in Part 4, we take a look at the seven amicus curiae...more

Tenth Circuit Rejects State Law Challenge to FAA Primacy

In the aftermath of AT&T Mobility, LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, consumer lawyers have frequently argued that arbitration agreements should be invalidated if features other than the...more

Horton Hears a Reversal

On Tuesday, December 3rd, the Fifth Circuit Court of Appeals upheld the enforcement of mandatory arbitration provisions that include a class waiver. In D.R. Horton, Inc. v. NLRB, 2013 U.S. App. LEXIS 24073 24073 (5th Cir....more

Fifth Circuit Permits Class Action Waivers In Arbitration Agreements

The Fifth Circuit Court of Appeals recently handed a victory to employers in D.R. Horton, Inc. v. National Labor Relations Board, 12-60031, 2013 W.L. 6231617 (5th Cir. Dec. 3, 2013), reversing an Order of the National Labor...more

The California Supreme Court Curtails Concepcion’s Protection of Arbitration Agreements

In AT&T Mobility v. Concepcion, the United States Supreme Court analyzed whether a court could refuse to enforce an arbitration agreement because the terms are “unconscionable,” meaning that one party did not have meaningful...more

Clean-Up in Aisle 9: Ninth Circuit Finds Ralphs Grocery Company’s Arbitration Policy Unconscionable Under State Law Not Preempted...

As we have reported on several occasions, a string of United States Supreme Court cases over the past few years has strengthened the use and applicability of arbitration provisions in contracts. For example, in AT&T Mobility...more

Did You Know…The Continuing Saga Of Arbitration Agreements & Unconscionability

In light of the United States Supreme Court decision in AT&T Mobility LLC v. Concepcion, the California Supreme Court recently reversed its own prior decision where it had held that an arbitration agreement that requires an...more

California Courts Rule for and against Arbitration

Two recent Ninth Circuit opinions and a California Supreme Court ruling demonstrate that the debate over the enforceability of consumer arbitration provisions is far from over. With the U.S. Supreme Court weighing whether to...more

Through the Lens of Concepcion: California Supreme Court Revisits the Validity of Agreements Requiring Employee Waiver of Wage...

Almost one year after the U.S. Supreme Court summarily vacated the original 2011 Sonic-Calabasas opinion (Sonic I), the California Supreme Court issued its opinion on remand in Sonic-Calabasas A, Inc. v. Moreno (Sonic II)....more

California Supreme Court Clarifies Application Of Supreme Court Arbitration Holdings On State Law

On October 17, the Supreme Court of California held that, while the Federal Arbitration Act (FAA) preempts a California state-law rule categorically prohibiting waiver of state pre-arbitration protections in arbitration...more

Arbitration Wars: The California Supreme Court Strikes Back In Sonic II

On October 17, 2013, the California Supreme Court revisited the enforceability of arbitration agreements in California. The Court released its decision Sonic-Calabasas Inc. v. Moreno (Sonic II). In that 5 – 2 ruling, the...more

California Confirms Preemption by FAA Over State Rule Barring Employee Waiver - Mostly

In Sonic-Calabasas A, Inc. v. Moreno (Sonic II), the California Supreme Court addressed an employee’s waiver of access to an administrative hearing, in this case a Berman hearing, in an arbitration agreement imposed as a...more

California Supreme Court Follows Concepcion But Allows Courts To Strike Down Unconscionable Arbitration Agreements

Sonic-Calabasas A, Inc. v. Moreno, No. S174475, (October 17, 2013): As expected following the recent decision by the Supreme Court of the United States interpreting the Federal Arbitration Act (FAA), the California Supreme...more

Round 2: Arbitration Agreements v. California Supreme Court

Why it matters: Sonic-Calabasas A, Inc. v. Moreno (“Sonic II”) presents a mixed bag for employers. While the California Supreme Court reversed itself, acknowledging that the waiver of a Berman hearing is not per se...more

Sonic Calabasas Is A Tactical Retreat From Supreme Court FAA Precedent

On October 17, 2013, in Sonic-Calabasas A, Inc. v. Moreno, the California Supreme Court issued a 73-page decision (excluding concurrence and dissent) that attempted to construe the U.S. Supreme Court’s recent Federal...more

California Supreme Court Grants Review in Brown

The impact of the California Court of Appeal’s recent opinion in Brown v. Superior Court, 216 Cal. App. 4th 1302 (Cal. Ct. App. 2013) is on hold, at least for now. Last week, the California Supreme Court indicated it would...more

Chasm Continues To Widen, For Now, Between NLRB and Federal Courts On Enforceability Of Class Action Waivers In Employment...

Just last week, in the case GameStop Corp., a National Labor Relations Board (NLRB) administrative law judge applied recent Board precedent and ignored contrary cases from federal courts to find an employer’s arbitration...more

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