Daily Journal Quotes Steven G. Pearl on Current State of Arbitration Law

The Daily Journal ran a front page article today noting the confused state of California law on mandatory arbitration and class action waivers after Concepcion. Daily Journal writer Emily Green quoted retired California Supreme Court Justice Carlos Moreno, Los Angeles Superior Court Judge William Highberger, and yours truly in discussing California law pre- and post-Concepcion.

Emily did a very nice job of describing the current situation:

After a history of consumer- and employee-friendly decisions by the state Supreme Court limiting mandatory arbitration, California appellate courts are considering whether to gut those precedents in an effort to comport with a new controversial standard set by the U.S. Supreme Court. 

The state appeals courts are seeing a glut of arbitration-related cases, largely brought by employers and businesses seeking to compel disgruntled consumers and employees to resolve their claims privately instead of through the courts.  

The courts have responded by issuing disparate and sometimes contradictory opinions, especially on the issue of unconscionability, the question of whether arbitration claims are enforceable. The opinions have left litigants in legal limbo, unsure if they are bound by arbitration. 

Sounds right to me. And while decisions from the California Supreme Court in its current docket of arbitration cases may help resolve some of these issues, we all should recognize that the Supreme Court of the United States likely will not hesitate to correct what it perceives as an improper decision. See Sonic-Calabasas A, Inc. v. Moreno (discussed here) and Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327 (3/20/12) (discussed here).