New opinion applies exception to Concepcion: Garrido v. Air Liquide Indus. U.S. LP

In Garrido v. Air Liquide Industrial U.S. LP, ___ Cal.App.4th ___ (Oct. 26, 2015), the Court of Appeal (Second Appellate District, Division Two) declined to enforce an arbitration clause with a class action ban, finding the clause unenforceable under Gentry. 

The FAA, as construed in Concepcion, did not preempt Gentry in this case because "[s]ection 1 of the FAA exempts from coverage of the FAA 'contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.'"  Slip op. at 4 (quoting 9 U.S.C. § 1).  Because the plaintiff and the proposed class worked as drivers in interstate commerce, the FAA did not apply, and thus did not preempt Gentry.  Id. at 7-13.