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Court of Appeal (Cal.) Enforces Arbitration Clause, But Will Not Disregard Gentry Without Supreme Court Telling it to Do So

by Scott J. Hyman |

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

District Court (Fla.) Orders TCPA Claim to Arbitration; Finds Clause’s Requirement to Go to NAF Not a Material Term and that the FAA Allows Substitution of Different Arbitration Forum

by Scott J. Hyman |

In Obremski v. Springleaf Financial Services, Inc., 2012 WL 3264521 (M.D.Fla. 2012), Judge Hernandez-Covington ordered a consumer’s TCPA claim to arbitration, finding that the TCPA claim along with the other allegations fell within the scope of the arbitration clause. Here, the Court finds that Obremski's claims “arise from” or “relate to” the Agreement, as they are all based upon allegations… Read More

Cal. Court of Appeal Publishes Caron Decision on Enforceability of RISC Arbitration Clause Following Industry Support

by Scott J. Hyman |

In Caron v. Mercedes–Benz Financial Services USA LLC --- Cal.Rptr.3d ----, 2012 WL 2579662 (Cal.App. 4 Dist. 2012), the Fourth District Court of Appeal found that the dealer and finance company adequately authenticated the sales contract in moving to compel arbitration.   Defendants attached both pages to their motion, and the first page matched the one plaintiff had attached her complaint,… Read More

Court of Appeal (Cal.) Finds that Concepcion Overrules Gentry-test on Class Action Waivers; Requires Enforcements of Class Action Waiver; Holds Concepcion Applicable to State Courts, Too

by Scott J. Hyman |

In Iskanian v. CLS Transportation Los Angeles, Inc., here, the Court of Appeal for the Second District found that Concepcion overruled the Gentry test for determining the validity of a class action waiver in an arbitration clause, and required waiver of such class action rights. The Gentry court laid out a four-factor test for determining whether a class waiver should… Read More

District Court (Cal.) Follows Sanchez, Denies Petition to Compel Arbitration in NOI Class Action

by Scott J. Hyman |

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… Read More

Supreme Court (Mo.) Holds Concepcion Permits Unconscionability Analysis, Strikes Down Automobile Title Lender’s Class Action Waiver in Arbitration Clause

by Scott J. Hyman |

In Brewer v. Missouri Title Loans, --- S.W.3d ----, 2012 WL 716878 (Mo. 2012), the Missouri Supreme Court found that Concepcion permitted unconscionability analysis as to an automobile title lender's effort to enforce a class action waiver in an arbitration clause.  The Missouri Supreme Court held, in part, that the lender's clause's reservation of self-help remedies -- often the title lender's chief… Read More

9th Circuit Finds California’s Broughton-Cruz Rule Pre-empted by FAA; Finds Concepcion Requires Arbitration of UCL Claims

by Scott J. Hyman |

In Kilgore v. KeyBank, Nat. Ass'n, --- F.3d ----, 2012 WL 718344 (9th Cir. 2012), the Court of Appeals found that California’s state law Broughton-Cruz exception to arbitration enforcement did not survive Concepcion. The facts were as follows: Plaintiffs are former students of a private helicopter vocational school located in Oakland, California, and operated by Silver State Helicopters, LLC (“SSH”).… Read More

U.S. S. Ct. Issues Concepcion Decision; Holds that California’s Discover Bank rule is Pre-empted by the Federal Arbitration Act

by Scott J. Hyman |

The United States Supreme Court issued its 5-4 opinion in AT&T v. Concepcion today, holding that the Federal Arbitration Act pre-empts California's Discover Bank rule.  Justice Scalia authored the opinion, joined by justices Roberts, Kennedy, Thomas, and Alito.  Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented.  A copy of the opinion can be found here, but the syllabus summarizes the Court's holding as… Read More

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