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Supreme Court (New Mexico) Finds Arbitration Clause in Automobile RISC Not Unconscionable

by Scott J. Hyman |

In Eileen J. Dalton v. Santander Consumer Usa, Inc., 2016 WL 5266621, at *6 (N.M., 2016), the New Mexico Supreme Court rejected an unconscionability challenge to an arbitration clause in the standard form RISC. "The self-help and small claims carve-out provisions in the arbitration clause of the finance contracts are not substantively unconscionable. Therefore, Dalton did not satisfy her burden… Read More

CFPB Issues Notice of Proposed Rulemaking Regarding Consumer Arbitration Clauses

by Scott J. Hyman |

Today, the CFPB issued a Notice of Proposed Rulemaking with regard to consumer arbitration, here:  CFPB_Arbitration_Agreements_Notice_of_Proposed_Rulemaking.  The CFPB's press release is here:  CFPB Press Release. The CFPB proposal is seeking comment on a proposal to prohibit companies from putting mandatory arbitration clauses in new contracts that prevent class action lawsuits. The proposal would open up the legal system to consumers… Read More

District Court (Cal.) Enforces RISC Arb. Clause Post-Sanchez, Finding No Waiver; Says in Dicta that Broughton/Cruz Pre-empted

by Scott J. Hyman |

In Goodridge v. KDF Automotive Group, Inc., 2016 WL 142216, at *9-10 (Cal.App. 4 Dist., 2016) (unpublished), the Court of Appeal addressed Plaintiff's continued post-Sanchez fight against arbitration, finding that the standard form RISC was not unconscionable.  The Court of Appeal also found that that the Defendant's litigation conduct did not waive the right to assert it. We conclude Goodridge has not… Read More

Third Time’s a Charm: Court of Appeal (Cal.) Orders NOI Class Action to Arbitration; Rejects Sanchez’ “Ability to Pay Arbitration Costs” Loophole Where Cheaper Vehicles are Involved

by Scott J. Hyman |

In Trabert v. Consumer Portfolio Services, Inc., 2015 WL 9271437, at *6-8 (Cal.App. 4 Dist. 2015) (unpublished), the Court of Appeal addressed for the third time whether an arbitration clause in a standard form RISC was unconscionable.  The Court of Appeal addressed the consumer's argument that Sanchez was distinguishable where cheaper cars purchased by poorer consumers was involved.  The Court of Appeal… Read More

Court of Appeal (Cal.) Finds Arb. Clause on Sanchez Remand Not Unconscionable; Says Trial Court Properly Struck Class Allegations in Granting Petition to Arbitrate

by Scott J. Hyman |

In Vargas v. SAI Monrovia B, Inc., 2015 WL 7301781, at *5 (Cal.App. 2 Dist., 2015) (unpublished), the Court of Appeal found the RISC arb. clause not to be unconscionable.  What's interesting about the opinion is what to do with the class action allegations in granting the petition to arbitration.  The Court of Appeal found that the trial court properly… Read More

Court of Appeal (Cal.) Says, after Sanchez Remand, RISC Arb. Clause is Enforceable

by Scott J. Hyman |

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

Court of Appeal (Cal.) Finds Arbitration Clause Enforceable in Call Recording Class Action; Says Arb. Clause’s Reference to Using AAA Necessarily Incorporated AAA’s Rules, Including Delegation to Arbitrator Whether Class Claims Can Be Decided by Arbitrator

by Scott J. Hyman |

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

Court of Appeal (Cal.) Denies Petition to Arbitrate Because Translated Form of Automobile RISC Provided to Spanish-Speaking Customer Did Not Have an Arbitration Clause

by Scott J. Hyman |

In Ramos v. Westlake Services LLC, 2015 WL 6605215, at *4 (Cal.App. 1 Dist., 2015), the Court of Appeal in an unpublished decision affirmed the denial of a petition to arbitrate because, apparently, the dealer gave the customer the wrong translated form of the RISC -- one without an arbitration clause.  "[T]he trial court found that while he had received a… Read More

California Supreme Court Issues Sanchez v. Valencia Motors Decision on Enforceability of Arbitration Clause in Standard Form RISC

by Scott J. Hyman |

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

Our Report on Yesterday’s Oral Argument before the California Supreme Court on the Sanchez Arbitration Case

by Scott J. Hyman |

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

District Court (Cal.) Finds that Clause Permitting New Arbitration Before 3-Arbitrator Panel in Standard Form Automobile RISC’s Arb. Clause Should Be Severed to Preserve Arbitration Clause

by Scott J. Hyman |

In Trabert v. Consumer Portfolio Services, Inc., --- Cal.Rptr.3d ----, 2015 WL 880949 (Cal.App. 4 Dist. 2015), the Court of Appeal previously had held that the three-arbitrator review provision of the standard Law Printing auto purchase contract's arbitration clause is unconscionably one-sided.  In this case, the Court of Appeal held that it can be, and must be, severed by striking… Read More

California Courts of Appeal Add Two to the Industry-Side in the Sanchez Tally on Automobile RISC Arbitration Clauses

by Scott J. Hyman |

In Hernandez v. W.R. Thomas, Inc., 2015 WL 112799 (Cal.App. 4 Dist. 2015), the Court of Appeal found in an unpublished decision that a consumer failed to meet its burden of demonstrating that the arbitration clause found in the standard for automobile RISC was unconscionable. After considering these submissions, the court issued an order scheduling an evidentiary hearing “on the limited issue… Read More

Court of Appeal (N.M.) Finds Auto Finance Arbitration Clause Unconscionable

by Scott J. Hyman |

In Dalton v. Santander Consumer USA, Inc., --- P.3d ----, 2014 WL 7463867 (N.M.App. 2015), the New Mexico Court of Appeal found that an arbitration clause an automobile RISC was unconscionable, and that the unconscionability analysis was not preempted by the FAA. A recent decision of a federal court applying California's unconscionability doctrine to an arbitration scheme identical to that in this… Read More

11th Cir. Refuses to Enforce Arbitration Clause Requiring Tribal Arbitration Where Tribe Refused to Authorize an Arbitrator

by Scott J. Hyman |

In Inetianbor v. CashCall, Inc., --- F.3d ----, 2014 WL 4922225 (11th Cir. 2014), the Court of Appeals for the 11th Circuit found that an arbitration clause requiring a consumer to submit his claim to an authorized tribal arbitrator could not be enforced when the Tribe refused to authorize a tribal leader to arbitrate. To decide whether the forum selection… Read More

California Courts of Appeal (First and Sixth Districts) Issue Opinions on Enforcement of Arbitration Clause in Standard Form Automobile RISC

by Scott J. Hyman |

In Gillespie v. Svale Del Grande, Inc., 2014 WL 1509813 (Cal.App. 6 Dist. 2014), the Sixth District Court of Appeal found that Concepcion trumped the CLRA’s anti-class action waiver, but remanded the matter to the superior court to determine whether other unconscionable provisions could be severed. In this case, pursuant to Concepcion, supra, 131 S.Ct. 1740, we determine that the… Read More

Court of Appeal (Mo.) Strikes Automobile Arb. Clause; Says Dealer’s Videotape of Closing Showing Discussion and Acknowledgment of Arbitration Clause was Insufficient; Finds Retention of Self-Help Remedy Renders Clause Unconscionable

by Scott J. Hyman |

In Greene v. Alliance Automotive, Inc., --- S.W.3d ----, 2014 WL 928859 (Mo.App. W.D. 2014), the Missouri Court of Appeal affirmed in an unpublished decision a trial court’s striking down of an arbitration clause in an automobile retail installment sales contract.  The court reviewed a videotape of the closing of the sale by the dealer, and found that the Customer… Read More

Two California District Courts Order TCPA Claims to Arbitration

by Scott J. Hyman |

In Mendoza v. Ad Astra Recovery Services Inc., 2014 WL 47777 (C.D.Cal. 2014), Judge Snyder ordered a TCPA class action to arbitration.  The facts were as follows: On September 9, 2013, plaintiff Miguel Mendoza filed this putative class action against defendant Ad Astra Recovery Services, Inc. (“Ad Astra”) on behalf of himself and all others similarly situated. Plaintiff asserts claims… Read More

Court of Appeal (Cal.) Adds Another to Sanchez Queue: “Let’s not beat about the bush. Businesses put arbitration provisions in their adhesion contracts because they think that if they are sued they will fare better in arbitration than they will before a jury.”

by Scott J. Hyman |

In Castellanos v. Quality Nissan, Inc., 2013 WL 6234205 (Cal. App. 4 Dist. 2013), the Fourth District Court of Appeal, Division Three in an unpublished decision found the standard form RISC arbitration clause to be unconscionable, and affirmed the trial court’s denial of the dealership’s petition to compel arbitration.  The Court of Appeal mentioned, in particular, the issue with the appellate procedure… Read More

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