Court of Appeal (Cal.) Enforces Arbitration Clause, But Will Not Disregard Gentry Without Supreme Court Telling it to Do So

In Truly Nolen of America v. Superior Court (2012) 2012 DAR 11207, the Court of Appeal agreed that various appellate courts in California, after Concepcion, found that Concepcion is not compatible with the California Supreme Court’s  Gentry decision.  However, the Court of Appeal declined to disregard Gentry until the California Supreme Court tells the lower courts to do so, since Concepcion did not expressly deal with the public policy rationale underlying Gentry but only with the different unconscionability rationale underlying Discover Bank.  The Court of Appeal in Truly Nolen nevertheless ordered arbitration because the plaintiff did not introduce evidence on Gentry’s four factors sufficient to support a denial of the motion to compel arbitration.  Like other courts, Truly Nolen found that the NLRB’s decision finding class action waivers incompatible with the NLRA unpersuasive and, and the Court of Appeal refused to follow the NLRB’s decision.