New class arbitration opinion: Franco v. Arakelian Enterprises, Inc.

In Franco v. Arakelian Enterprises, Inc., ___ Cal.App.4th ___ (Nov. 26, 2012), the Court of Appeal (Second Appellate District, Division One) affirmed an order denying a petition to compel arbitration in a wage and hour class action, holding (among other things) that Gentry remains good law and was not overturned by either Concepcion or Stolt-Nielsen. 

The comprehensive (and unanimous) opinion tops out at 65 pages, and cites a number of secondary authorities, including these law review articles:

• Note, There Is Still Hope For The Little Guy:  Unconscionability Is Still A Defense Against Arbitration Clauses Despite AT&T v. Concepcion (2012) 33 Whittier L.Rev. 651
• Gilles & Friedman, After Class:  Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion (2012) 79 U.Chi. L.Rev. 623

Comments

[Eric Kingsley]

This opinion with its breadth and persuasiveness likely puts to rest at least within the state the question if Gentry is still good law. SCOTUS will be the only one to reverse this very well reasoned opinion and I'm hoping Kennedy can be swayed by these arguments especially in a employment context where choice is much more limited. THE NRLA issues will likely be taken up next by this same panel and my firm currently has a similar case before this very panel, fully briefed and waiting on argument.

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=2&doc_id=2002483&doc_no=B238426