preemption

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In Gallo v. Wood Ranch United States, No. B311067, 2022 Cal. App. LEXIS 652, at *3-6 (Ct. App. July 25, 2022), the Court of Appeal addressed the effect of late payment of arbitration fees under the penalties provided for by Civil Procedure Code sections 1281.97 and 1281.99, which obligate a company or business who drafts an arbitration agreement to pay… Read More

In  Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court held that the FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee.  However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014)… Read More

In Hodges v. Comcast Cable Communications, LLC.,  the Court of Appeals for the 9th Circuit held that the district court erred in denying Comcast's motion to compel arbitration even though its arbitration clause precluded customers from litigating public injunction claims in any forum.  First, the Court of Appeals held that the mere presence of the clause in the arbitration agreement… Read More

Today, the Dept. of Treasury issued an analysis of the CFPB's Arbitration Rule, entitled Limiting Consumer Choice, Expanding Costly Litigation: An Analysis of the CFPB Arbitration Rule.  The Dept. of the Treasury concluded that In view of these defects, it is clear that the Rule does not satisfy the statutory prerequisites for banning the use of arbitration agreements under the… Read More

In McGill v. Citibank, 2017 WL 4382034, at *3 (Cal.App. 4 Dist., 2017) (unpublished), the Court of Appeal put its gloss on the Supreme Court's decision in McGill and what is left for the trial court to decide on remand. The Supreme Court concluded its opinion with the following paragraph: “Our invalidation of the arbitration provision insofar as it purports to waive McGill's… Read More

In McGill v. Citibank, N.A., 2017 WL 1279700, at *1 (Cal., 2017), the California Supreme Court side-stepped whether the Broughton/Cruz rule survives Concepcion.  See Kilgore v. KeyBank, Nat. Ass'n, --- F.3d ----, 2012 WL 718344 (9th Cir. 2012) ("the Broughton–Cruz rule does not survive Concepcion because the rule “prohibits outright the arbitration of a particular type of claim”—claims for broad public… Read More

In DIRECTV, Inc. v. Imburgia, 2015 WL 8546242, at *1-2 (U.S.Cal.,2015), the Supreme Court of the United States once again affirmed its preference for arbitration, and killed the "poison-pill" argument that had gathered fancy amongst the plaintiff's bar. Petitioner DIRECTV, Inc., and its customers entered into a service agreement that included a binding arbitration provision with a class-arbitration waiver. It specified… Read More

In Gillespie v. Svale Del Grande, Inc., 2015 WL 7307139, at *5-6 (Cal.App. 6 Dist., 2015) (unpublished), the Court of Appeal issued a lengthy opinion after remand from the Supreme Court in Sanchez that the Arbitration clause was enforceable.  The Court rejected the argument that neither the Arbitration Clause's choice of law or poison-pill provisions negated FAA pre-emption. The California Supreme Court disagreed… Read More

In Brinkley v. Monterey Financial Services, Inc., 2015 WL 7302268 (Cal.App. 4 Dist., 2015), the California Court of Appeal found a TCPA/Call Recording case to be within the scope of an enforceable arbitration clause:= We conclude that Brinkley's claims fall within the scope of the arbitration agreement and that the arbitration agreement is enforceable, with the exception of one provision… Read More

Today, the California Supreme Court handed car dealers and auto finance companies an important victory, upholding the arbitration clause in the standard form automobile purchase contract used by most dealers in the Golden State.  (Sanchez v. Valencia Holding Co., LLC. (S199119; Aug. 3, 2015).)  A copy of the California Supreme Court's decision can be found here.  The California Supreme Court… Read More

Yesterday, the California Supreme Court heard oral argument in Sanchez (Gil) v. Valencia Holding Co. LLC, S199119. (B228027; 201 Cal.App.4th 74; Superior Court of Los Angeles County; BC433634) on whether the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempts state law rules invalidating mandatory arbitration provisions… Read More

In McGill v. Citibank, N.A., --- Cal.Rptr.3d ----, 2014 WL 7202035 (Cal.App. 4 Dist. 2014), the California Court of Appeal held that Concepcion overruled California’s Broughton-Cruz rule. Citibank petitioned to compel McGill to arbitrate her claims based on an arbitration provision in her account agreement. The trial court granted the petition on McGill's claims for monetary damages and restitution, but… Read More

In Fischer v. Rent-A-Center, Inc., 2014 WL 3729553 (E.D.Cal. 2014), Judge England ordered a TCPA and Rosenthal Act claim to Arbitration. Judge England found the TCPA claim within the scope of the Arbitration Agreement. Plaintiff opposes Defendant's Motion on the grounds that Defendant has not established that its repeated calls to Plaintiff were in any way related to the loan… Read More

In Delgado v. Progress Financial Co., 2014 WL 1756282 (E.D.Cal. 2014), Judge O’Neill ordered a Plaintiff’s TCPA and FDCPA claims to arbitration. Mr. Delgado does not dispute that he signed the Arbitration Agreement at the time he applied for a loan from Progreso Financiero; nor does he dispute the validity of the agreement. Doc. 14 at 2. Mr. Delgado argues,… 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 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 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 Gutierrez v. Wells Fargo Bank, NA --- F.3d ----, 2012 WL 6684748 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit rejected a post-trial petition to enforce arbitration, and found partial pre-emption of the UCL to the extent it conflicted with the business of banking in how a bank applies and computes overdraft fees.  The Court of Appeals… Read More

In Truly Nolen of America v. Superior Court (2012) 2012 DAR 11207, the Court of Appeal agreed that various appellate courts in California, after Concepcion, found that Concepcion is not compatible with the California Supreme Court's  Gentry decision.  However, the Court of Appeal declined to disregard Gentry until the California Supreme Court tells the lower courts to do so, since Concepcion did… Read More

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