Last week's Daily Journal had a focus article called "Class Conflicts" (subscription), which addresses "no-class-action" arbitration clauses and the Court of Appeal's recent decision in Konig v. U-Haul Company, ___ Cal.App.4th ___ (Dec. 19, 2006) (see my post on Konig here). The blog Wage Law has posted a non-subscription copy of the article online.
The article begins with an interesting point about the interplay between Konig and Gentry (in which the Supreme Court has granted review):
Last month, the 2nd District Court of Appeal published a decision upholding an employee's class-action waiver in an arbitration with his employer. Konig v. U-Haul Company of California, 2006 DJDAR 16494 (Dec. 19). The California Supreme Court had already granted review of a remarkably similar case decided by the 2nd District, Gentry v. Superior Court, 135 Cal.App.4th 944 (2006) (rev. granted, April 26, 2006). In Konig, the feisty appellate court capitalized on the opportunity to, at least temporarily, trump the grant of review and once again make its rule in Gentry the rule in the 2nd District.
But before the ink dries on the Konig decision's "filed" stamp, the Supreme Court will probably take the case up for review and decide, once and for all, that prospective class-action waivers in employment arbitrations are unenforceable.
Interesting. Looking at the two opinions more closely, it turns out that Division Five of the Second District decided both. Two of the justices, Kriegler and Turner, were on both panels. In Gentry, Justice Armstrong concurred (in fact, he authored the opinion), and in Konig, Justice Mosk dissented. Perhaps the dissent is the reason Konig was published.