A new Ninth Circuit opinion affirms an order denying a motion to compel arbitration in a consumer class action. Smith v. JEM Group, Inc., ___ F.3d ___ (9th Cir. Dec. 12, 2013).
The opinion, authored by Judge William Fletcher, includes this passage:
Washington procedural unconscionability law is concerned only with the process that results in the formation of the agreement. The state rule at issue in Concepcion, as well as the rules provided by the Court as examples [in Concepcion], were preempted because they specified the manner in which the arbitration could or should be conducted. Unlike those rules, the Washington law at issue says nothing about the manner in which an arbitration is to be conducted.
Slip op. at 11.