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« New class certification decision: Lewis v. Robinson Ford Sales, Inc. | Main | "The State of Legal Blogs: A Report From the Frontlines" »

Thursday, October 25, 2007

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Comments

Sean McLoughlin

Thanks for posting this online. I was VERY frightened, however, by the statement made on an important and frequently raised question of law that was reflected in Judge Bonnie Sabraw's comments on motions to compel arbitration. In particular, she said:

Question in those cases [that do not forbid class arbitration] is whether the arbitrator may decide class cert or if the judge must decide it. She found no case law on whether it's proper for the arbitrator to certify. Better course of action is for the court to certify the class, thereby obtaining jurisdiction over the class, and then order the case to arbitration.

The problem with her answer is that it is wrong - there is clear case law. If the FAA applies to the arbitration agreement, Green Tree and Garcia v. DirecTV answer the question expressly and state in very clear terms that the decision is solely for the arbitrator, not the court. If the FAA does not apply, and only California law applies, then the old Blue Cross case discussed by the Garcia v. DirecTV opinion still applies and permits the court to exercise its discretion, subject to the terms of the parties' agreement to arbitrate.

I hope a practitioner in live attendance pointed this out to Judge Sabraw and the rest of the audience.

Kimberly A. Kralowec

Thanks, Sean. That point was not mentioned during the seminar. What I summarized above was all that was said about it.

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