In Truly Nolen of America v. Superior Court, ___ Cal.App.4th ___ (Aug. 9, 2012; pub. ord. Aug. 13, 2012), the trial court granted the defendant's petition to compel arbitration, but denied the defendant's request that the arbitration be limited to individual (as opposed to class) claims. The Court of Appeal (Fourth Appellate District, Division One) reversed the latter part of the order.
The opinion has an interesting discussion of whether Gentry survived Concepcion. While concluding that Gentry probably did not survive Concepcion, the Court of Appeal nevertheless considered itself bound by Gentry until a higher court (either the California Supreme Court or the U.S. Supreme Court) explicitly held otherwise. Slip op. at 21-24.
The opinion went on to hold that "[a]ssuming the Gentry standard survives the United States Supreme Court holdings, the factual analysis as to whether the Gentry factors apply in any particular case must be specific, individualized, and precise." Id. at 31. The declarations submitted by plaintiffs' counsel, the court determined, were too generalized to support the trial court's finding that the Gentry factors had been met. Id. at 24-31.
Next, the court held that an implied, rather than an express, agreement to class (as opposed to individual) arbitration may satisfy Stolt-Nielsen. Id. at 32-35. The court remanded for further findings on this point. See id.
Finally, the court declined to follow D.R. Horton. Slip op. at 35-36 (citing Nelsen v. Legacy Partners and Iskanian).
UPDATE: The Complex Litigator has a detailed post on Truly Nolen.