In response to the Supreme Court’s decision in Concepion, the California Legislature has introduced AB 1062, which would amend Section 1294 of the California Code of Civil Procedure to make denials of orders to compel arbitration non-appealable— except in cases involving arbitration under collective bargaining agreements (the so-called union carve-out). This is a stealth effort by the State to limit consumer and employment arbitration. In a nut shell, it means that if you move to compel arbitration and lose, your only recourse is to file a writ. Otherwise you have to go to trial and that, effectively, means forfeiting arbitration. The validity of AB 1062, if it ever becomes law, will certainly be challenged on several grounds, including that it is yet another state-imposed, arbitration-unfriendly rule that is preempted under the FAA. The fact that it is spawned from the legislature rather then the judiciary almost certainly won’t save it.
“The Supreme Court held that AT&T’s arbitr ation agreement was enf orc eable notwithst anding the class act ion waiver because California law conf licts with— that is, is preempted by—the FAA .”