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« New Jersey Supreme Court class certification decision: Iliadis v. Wal-Mart Stores, Inc. | Main | Oral argument report: Gentry v. Superior Court »

Tuesday, June 05, 2007



Went to the argument today, but didn't take notes. I haven't reviewed the factual record that closely, but here were my impressions judge by judge.

First, the dissenters in Discover Bank (Baxter and Chin) seemed the most in support of the notion that the class action waiver in an arbitration agreement was enforceable. I have never seen Chin say much in a case, and this time he was one of the more active questioners. I am not sure I followed where he and Baxter were going, but they seemed to believe that because the public policy in favor of arbitration is statutory, while the public policy in favor of wage/hour class actions is judge made, the former trumps the latter. Several judges echoed the notion that the case posed some tension between the policies in favor arbitration and class actions.

The biggest surprise (to me) was Moreno. Maybe he was play acting, but he seemed like he was of similar mind to Baxter and Chin. His questions to appellant's counsel were skeptical in tone, and at one point he seemed to scoff at the appellant's argument that the public policy in the Labor Code in favor of "concerted activity" applied to class actions. He stated that the language was clearly a "term of art" that referred to union organization. I still doubt Moreno will side with the defendants, but you would think he was going to from watching the hearing.

Kennard seemed very inclined to strike down class action waivers as applied to wage and hour claims. She seemed to distinguish class action waivers for discrimination claims though on the basis that recoveries in discrimination cases are larger.

As usual, she asked oddball questions. At one point, she drew some distinction between explaining how the Circuit City arbitration program worked in a video and in handouts as opposed to in the employee handbook. I didn't see the distinction, but it was important to her.

I got the sense that Kennard was looking to draft an Armanderiz-like opinions that allows class action waivers in limited contexts with some bright line rules set forth (although one is probably that it cannot apply to wage/hour class actions).

Werdeger also seemed like she was prepared to strike down class action waivers in the wage and hour context. She said less than Kennard and was less animated, but I got the sense they were on the same page (as they were in Discover Bank).

George said little, but the one time I remember him speaking, I had the sense he was skeptical of Circuit City's position. If I had to bet, I'd put him in the reversal camp.

The last Justic, Corrigan, was mute almost the whole time. The one question she asked-- whether the employees had a series of options as to how they wanted to handle dispute resolution with Circuit City-- was the kind of question I associated with the Chin camp since the answer apparently was yes (plaintiff's counsel initially said they had no choice, but later relented on that point).

I expect all the Cal Supremes' wage/hour decisions to be unanimous now, but from the argument you would think it was going to be a 4-3 decision with 3 definite votes for affirming from Baxter/Chin/Moreno, 2 definite votes for reversal from Werdeger/Kennard, 1 likely vote for reversal from George, and 1 wildcard from Corrigan.

Final prediction - 7/0 reversal on this case and 7/0 reversal on Ralphs tomorrow. That is not based on anything I saw, but on the trends I see with this very political Cal Supreme Court.

michael walsh

I came away with similar impressions, except that I didn't read nearly as much sympathy toward Circuit City's position from the comments made by Moreno. The left side of the panel, Moreno, Werdegar, Kennard and George, seemed to be inclined to strike down the class action prohibition, at least in the wage & hour context. Corrigan seemed more equivocal. Baxter and Chin would be the surprises if the vote was 7-0 for Gentry. Kennard and Werdegar would be even bigger surprises if it was 7-0 for Circuit City.

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