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Class Action Waivers

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In Gillette v. First Premier Bank, 2013 WL 3205827 (S.D.Cal. 2013), Plaintiff's counsel employed a strategy purportedly designed to secure a waiver of arbitration clause.  Plaintiff filed a small-value Rosenthal Act claim and settled it with the defendant.  However, Plaintiff also had filed a federal class action under Penal Code 632 -- California's call recording statute.  Defendant moved to compel arbitration of… Read More

The Supreme Court of the United States just issued its decision in American Express v. Italian Colors, Inc., here  The syllabus of the Court summarizes the decision as follows: The FAA does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.… Read More

In Vargas v. Sai Monrovia B, Inc., --- Cal.Rptr.3d ----, 2013 WL 2419044 (Cal.App. 2 Dist. 2013), the same panel that decided Sanchez v. Valencia Holding Co., LLC (2011) 201 Cal.App.4th 74, re-examined the enforceability of the arbitration clause in the standard California car purchase contract and held that its prior decision was correct.  The Court held that the clause… Read More

In Kilgore v. Keybank, Nat. Ass'n, --- F.3d ----, 2013 WL 1458876 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit, stepped back from the panel's ruling that Concepcion abrogates Cruz v. Pacificare Health Systems, Inc. (2003) 30 Cal.4th 303 and Broughton v. Cigna Healthplan of California (1999) 21 Cal.4th 1066, as well as Davis v. O'Melveny &… Read More

In Cayanan v. Citi Holdings, Inc., 2013 WL 784662 (S.D.Cal. 2013), Judge Anello ordered TCPA class actions to arbitration finding that the Arbitration clause in loan agreements were not both procedurally and substantively unconscionable and that the TCPA claims fell within the language of the arbitration agreements. Plaintiffs Elsie Cayanan, Kimberly Baker, and Jesse McKay filed a putative class action… Read More

In Natalini v. Import Motors, Inc. (2013) 2013 DAR 1673, the Court of Appeal followed the reasoning similar to Sanchez v. Valencia Holding Co., holding that the arbitration clause in the standard Law Printing car contract is unconscionable and unenforceable due to the $100,000 and injunction triggers to three arbitrator review and the reservation of self-help remedies including repossession. Read More

In Natalani v. Import Motors, Inc., 2013 WL 64611 (Cal.App. 1 Dist. 2013), the First District Court of Appeal found in an unpublished decision that the arbitration clause in a standard-form automobile RISC to be procedurally and substantively unconscionable, thus affirming the trial court's denial of the dealer's petition to arbitrate. Appellant contends that Concepcion broadly restricts the application of the… Read More

In Norton v. Ford of Santa Monica et al., 2012 WL 6721400 (Cal.App. 2 Dist. 2012), the Court of Appeal for the Second District, found in an unpublished decision that an automobile RISC's arbitration was procedurally and substantively unconscionable. As to procedural unconscionability, the Court of Appeal found: The vehicle purchase contract contains elements of surprise. Placement of the arbitration agreement… Read More

In Sherf v. Rusnak/Westlake et al., 2012 WL 4882547 (Cal.App. 2 Dist. 2012), the Court of Appeal in an unpublished decision, followed a similar analysis to the Caron decision, finding the class action waiver and arbitration clause in an automobile RISC enforceable, but remanding to the trial court for a determination of unconscionability.  Sherf had signed a typical RISC for the… Read More

In Goodridge v. KDF Automotive Group, Inc., 2012 WL 3635279 (Cal.App. 4 Dist. 2012), the Court of Appeal in an unpublished decision adopted the Sanchez analysis lock-stock-and-barrel, declining to order an automobile case to arbitration due to the ‘unconscionable’ arbitration clause in the RISC. Unconscionability. Applying a sliding scale for procedural and substantive unconscionability, we conclude the Contract's arbitration clause… Read More

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