In Samaniego v. Empire Today LLC, 2012 WL 1141054 (nonpub. Apr. 5, 2012), the Court of Appeal (First Appellate District, Division Three) refused to enforce an arbitration clause, finding it unconscionable under Armendariz, and flatly rejected the defendant's argument that Concepcion precluded that result:
Concepcion addresses whether the FAA preempts the Discover Bank rule. (131 S.Ct. at p. 1746.) The United States Supreme Court held that it does, because “[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” (Id. at p. 1748.) But at the same time as the Court repudiated the categorical rule in Discover Bank, it explicitly reaffirmed that the FAA “permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ [although] not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” (Id. at p. 1746; 9 U.S.C. § 2; see Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1158, fn. 4.) In short, arbitration agreements remain subject, post-Concepcion, to the unconscionability analysis employed by the trial court in this case.
Slip op. at 11-12.
The case was a putative class action (for Labor Code violations), but the arbitration clause did not appear to contain a class-action ban.
UPDATE: The unpublished opinion was ordered published on May 7, 2012. Thereafter, the California Supreme court denied review. See this update.