On June 25, 2012, we reported on Iskanian v. CLS Transportation Los Angeles, LLC, where a California appellate court, following the U.S. Supreme Court’s Concepcion decision, affirmed the enforcement of an arbitration clause waiving class claims, subsequent to the court’s pre-Concepcion suggestion that the waiver was unenforceable based on state precedent. In Samaniego v. Empire Today LLC, another California appellate court reached a different result in a similar context. There, the court found that a class action could proceed despite the existence of a class waiver arbitration clause, on the grounds that the entire agreement between the parties was unconscionable. The court construed Concepcion narrowly, noting Concepcion precluded only “defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” but did not preclude “generally applicable contract defenses, such as fraud, duress, or unconscionability.” Samaniego v. Empire Today LLC, Case No. A132297 (Cal. Ct. App. April 5, 2012).
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Recent decisions addressing enforceability of class-waiver arbitration clauses under Concepcion suggest continued conflict in California
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Cisco Systems, Inc