In Smith v. Americredit Financial Services, Inc., 2012 WL 834784 (S.D.Cal. 2012), Judge Sabraw post-Concepcion followed Sanchez in denying enforcement of an arbitration clause in an NOI class action.
With respect to the first clause, the Sanchez court found it was one-sided in favor of the seller because the buyer, not the dealer, is more likely to recover an award over $100,000 “and be satisfied with it; the car dealer would appeal it.” Id. at 95, 135 Cal.Rptr.3d 19. Relying on Little v. Auto Stiegler, Inc., 29 Cal.4th 1064, 130 Cal.Rptr.2d 892, 63 P.3d 979 (2003), and Saika v. Gold, 49 Cal.App.4th 1074, 56 Cal.Rptr.2d 922 (1996), the court found “there is no justification for the $100,000 threshold, other than to relieve the car dealer of liability it deems excessive…. A truly bilateral clause would allow a buyer to appeal an award below $100, 000.” Id. at 96, 56 Cal.Rptr.2d 922. ¶ The Sanchez court found the same was true with respect to the ability to appeal an award of injunctive relief, stating, “This type of appeal unduly burdens the buyer because the buyer, not the car dealer, would be the party obtaining an injunction.” Id. ¶ Turning to the costs of an appeal, the Sanchez could found the arbitration agreement imposed a greater burden on the buyer because it did not provide any means for determining how much the buyer could afford, nor did it provide the buyer with any kind of relief from unaffordable fees. Id. at 99–100, 56 Cal.Rptr.2d 922. ¶ Finally, the Sanchez court found the provision of the arbitration agreement that exempted repossession from arbitration compared with the requirement that claims for injunctive relief be arbitrated gave the seller an additional benefit. ¶ The buyer has no effective self-help remedies against a car dealer, and none of the buyer’s remedies is exempt. Yet one of the most important remedies to a consumer—injunctive relief—is subject to arbitration. While a buyer is likely to seek an injunction against a car dealer—10 of the 15 causes of action in this case do—we cannot conceive of a situation where the dealer would be requesting that type of relief against a buyer. Id. at 18, 56 Cal.Rptr.2d 922. ¶ Defendant argues this Court is “not bound by Sanchez and should not follow it.” (Mot. at 8.) It asserts Sanchez, like Discover Bank, is preempted by the FAA because it attempts to mandate particular procedures for arbitration. ( Id.) Specifically, Defendant contends Sanchez follows the “vindication of statutory rights” theory set out in Armendariz, which theory is in “grave doubt” following Concepcion. ( Id. at 9.) Defendant also claims Sanchez relies on a “modicum of bilaterality” concept, which the Supreme Court rejected in Concepcion. ¶ However, Sanchez does not rely on the “vindication of statutory rights” theory in finding substantive unconscionability. In discussing that portion of the agreement that governs payment of costs for appeal, the Sanchez court mentions that the Consumer Legal Remedies Act confers on consumers a right that limits their responsibility to pay arbitral expenses. 201 Cal.App.4th at 99, 135 Cal.Rptr.3d 19. Yet, the court did not rely on that right in reaching its decision. Rather, the court mentioned that right in the context of explaining the one-sided nature of the arbitration agreement, i.e., how requiring the appealing party to pay all costs of the appeal up front imposes a greater burden on the buyer than the seller. ¶ Furthermore, the Court disagrees with Defendant’s interpretation of Concepcion ‘s discussion of bilaterality. Defendant reads Concepcion as stating the Court was unconcerned that the arbitration agreement was not bilateral. However, the portion of the opinion Defendant cites concerns AT & T’s right to amend the agreement. See 131 S.Ct. at 1744. That right to amend was unilateral in favor of AT & T, and the Court was unconcerned with that right, but the Court was not unconcerned with the issue of bilaterality, in general. As evident in Sanchez, that issue remains at the core of substantive unconscionability under California law, and it has not been preempted by the FAA. ¶ Absent any persuasive reason for disregarding Sanchez, this Court adopts the reasoning and result of that case, finds the arbitration agreement at issue here to be substantively unconscionable, and denies Defendant’s renewed motion to compel arbitration. See Lau v. Mercedez–Benz USA, LLC, No. CV 11–1940 MEJ, 2012 WL 370557 (N.D.Cal. Jan.31, 2012) (adopting Sanchez, finding arbitration agreement unconscionable and denying defendant’s motion to compel arbitration).