California District Court Rejects Shotgun Attacks on Arbitration Agreements

by BakerHostetler

Alright, we all know in the wake of Italian Colors, Concepcion, and now many other cases that the presumption of arbitrability isn’t just a doctrine to recite in the manner of saying grace before invalidating an agreement, but is actually meant to be followed, even when it might ultimately thwart a class action. But can a would-be class action plaintiff evade an arbitration provision through scattershot attacks on the arbitration agreement’s individual provisions?

That seemed to be the approach in Herrera v. CarMax Auto Superstores, Inc., Case No. CV-14-776-MWF (VBKx) (C.D. Cal., July 2, 2014), but it didn’t really work. In Herrera, the three plaintiffs brought a garden-variety wage and hour suit against the employer asserting that they were not paid for all hours worked. Each of the plaintiffs signed arbitration agreements that incorporated arbitration rules and procedures set forth in a separate booklet that was periodically updated. They raised no fewer than eleven arguments why the provisions of those agreements could not be enforced.

The District Court, in an opinion notable for its conciseness, rejected each of those arguments including finding that:

  • The defendant could enforce the agreements, even though technically they were entered into by a corporate predecessor.
  • The defendant’s right to change the rules on 30 days’ notice under a set procedure did not render the agreements illusory.
  • While the arbitration agreements were contracts of adhesion, they were only slightly procedurally unconscionable, and not enough to invalidate them solely on that basis.
  • It was not unconscionable for the agreements to use the same statute of limitations as state law.
  • The arbitration agreements required both parties to arbitrate their claims, and thus were mutual.
  • In perhaps the most interesting part of the decision, the district court rejected the view of the Ninth Circuit in Ingle v. Circuit Stores, Inc., 328 F.3d 1165, 1179 (9th Cir. 2003), on a state law issue as being superseded by a subsequent California Appellate court on the issue of whether the employer’s right to modify the rules rendered the arbitration provisions unconscionable.
  • Contrary to the plaintiffs’ arguments, the agreements bound both parties.
  • Limitations on discovery did not invalidate the agreement.
  • The fact that arbitration has claim-preclusive effect does not render the agreement unenforceable.
  • Confidentiality is not unreasonable and the alleged jeopardy to the right to select counsel was too remote to find otherwise.
  • Giving the arbitrator the power to assess sanctions absent bad faith did not invalidate the agreement.

Rejecting each of these arguments, the court granted the defendant’s motion to compel arbitration and dismissed the case.

The bottom line: In the wake of Italian Colors and Concepcion, even lots of little claimed problems with arbitration provisions will not thwart the obligation to arbitrate.

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.