Don't trust article headnotes: Class arbitration required only on contractual principles.

September 5, 2012
By Justice Steven Vartabedian (Ret.) on September 5, 2012 6:00 AM |

Headlines.jpgI hope those of you reading this blog, or any other blog or case commentary, choose to read the discussed opinion rather than rely on the headnote or summary found in the commentary. Recently I came across the following headnote: "Gentry v. Superior Court, which permits invalidation of class action arbitration waivers, remains viable despite AT&T Mobility LLC v. Concepcion." The case opinion referred to is Truly Nolen of America v. Superior Court (certified for publication on August 13, 2012) 2012 DJDAR 11207.

If you think from this heading that you will find that the opinion discusses and supports the application of the Gentry analysis that policy considerations supporting class arbitration will rule the day over the applicable contract, you will find that you have been seriously misled. While the California Court of Appeal, Fourth Appellate District, Division One, does say that California Supreme Court case of Gentry has not been expressly overruled, it goes on to say that the U.S. Supreme Court's reasoning in Concepcion strongly suggests Gentry is toast (my term, not theirs). The appellate court states, "[T]o the extent the Gentry decision would permit such a generalized showing to negate the parties' contractual intentions, that conclusion is no longer valid after the Concepcion and Stolt-Nielsen decisions." (See previous blog of June 19, 2012.)

The appellate court found in Truly Nolen that, in any event, the trial court erred in requiring class arbitration; that even if the Gentry factors still apply, they were not established in this case. It remanded the matter to the trial court in issuing writ of mandate in favor of petitioner Truly Nolen. The trial court was instructed to determine whether there is a contractual basis for finding the parties mutually agreed to class arbitration. Thus the actual holding of the case left little doubt that it was applying the principles found in Concepcion rather the Gentry factors.

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