Arbitration

In McNamara v. Royal Bank of Scotland Group, PLC, 2012 WL 5392181 (S.D.Cal. 2012), Judge Lorenz called out a now-frequently employed tactic by Plaintiff’s counsel, who litigate individual collection torts in state court to be able argue waiver of the arbitration clause in a later-filed class action in federal court.  Judge Lorenz ordered a TCPA class action to arbitration, finding… Read More

In Sherf v. Rusnak/Westlake et al., 2012 WL 4882547 (Cal.App. 2 Dist. 2012), the Court of Appeal in an unpublished decision, followed a similar analysis to the Caron decision, finding the class action waiver and arbitration clause in an automobile RISC enforceable, but remanding to the trial court for a determination of unconscionability.  Sherf had signed a typical RISC for the… Read More

In Goodrich v. KDF Automotive, here, the Court of Appeal for the Fourth District found an arbitration clause in a standard form RISC unconscionable, for largely the same reasons as the Sanchez case currently pending before the California Supreme Court. Read More

In Harrier v. Verizon Wireless Personal Communications LP, 2012 WL 3655355 (M.D.Fla. 2012), Judge Moody addressed a petition to arbitrate a TCPA claim.  Plaintiff sued Verizon for emailing her to collect a debt after she received a bankruptcy discharge on Verizon's debt.  Verizon moved to compel arbitration.  Judge Moody denied the petition, holding: Harrier alleges that despite the bankruptcy discharge, Verizon called… Read More

In Goodridge v. KDF Automotive Group, Inc., 2012 WL 3635279 (Cal.App. 4 Dist. 2012), the Court of Appeal in an unpublished decision adopted the Sanchez analysis lock-stock-and-barrel, declining to order an automobile case to arbitration due to the ‘unconscionable’ arbitration clause in the RISC. Unconscionability. Applying a sliding scale for procedural and substantive unconscionability, we conclude the Contract's arbitration clause… Read More

In O'Brien v. American Exp. Co., 2012 WL 3628667 (S.D.Cal. 2012), Judge Moscowitz addressed arbitrability of a TCPA class-action claim.  Plaintiff Karin O'Brien brought the putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, alleging that Defendant American Express contacted her and others similarly situated by telephone without express prior consent and in violation of… Read More

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… Read More

In Obremski v. Springleaf Financial Services, Inc., 2012 WL 3264521 (M.D.Fla. 2012), Judge Hernandez-Covington ordered a consumer’s TCPA claim to arbitration, finding that the TCPA claim along with the other allegations fell within the scope of the arbitration clause. Here, the Court finds that Obremski's claims “arise from” or “relate to” the Agreement, as they are all based upon allegations… Read More

In Mora v. Harley-Davidson Credit Corp.,2012 WL 3245518 (E.D.Cal. 2012), Judge Ishii adopted the Magistrate’s ruling certifying an NOI class against HDCC, rejecting the argument that an arbitration clause contained in some but not all of the RISCs could defeat class certification.  Magistrate McAuliffe's full opinion which Judge Ishii reviewed can be found at Mora v. Harley-Davidson Credit Corp., 2012… Read More

In Caron v. Mercedes–Benz Financial Services USA LLC --- Cal.Rptr.3d ----, 2012 WL 2579662 (Cal.App. 4 Dist. 2012), the Fourth District Court of Appeal found that the dealer and finance company adequately authenticated the sales contract in moving to compel arbitration.   Defendants attached both pages to their motion, and the first page matched the one plaintiff had attached her complaint,… Read More

In Cisneros v. American General Financial Services, Inc. 2012 WL 3025913 (N.D.Cal. 2012), Judge Breyer found an arbitration clause in a contract educational services sold door-to-door was procedurally and substantively unconscionable. Plaintiff Lucresia Cisneros (“Plaintiff”) contends that Defendants American General Financial Services, Inc., Hispanic Educational, Inc., and Logic's Consulting, Inc., engaged in a door-to-door scheme selling personal computers and software… Read More

In Evans v. Williams & Fudge, Inc., 2012 WL 3025164 (S.D.Cal. 2012), Judge Miller found Rosenthal Act claims subject to arbitration, explaining: Here, the court concludes that the debt collection practices at issue directly arise or relate to the Promissory Note. As the broad language in the arbitration provision provides that any claim or dispute arising or related to the… Read More

In Trompeter v. Ally Financial, Inc., 2012 WL 1980894 (N.D.Cal. 2012), Judge Wilken found the LawPrinting RISC Arbitration procedurally substantively unconscionable, denied the petition to arbitrate, and refused the stay the case pending the outcome of the California Supreme Court’s decision in Sanchez.   The Plaintiff,  John Trompeter, had filed a putative class action against Defendant Ally Financial, Inc., alleging that… Read More

In Iskanian v. CLS Transportation Los Angeles, Inc., here, the Court of Appeal for the Second District found that Concepcion overruled the Gentry test for determining the validity of a class action waiver in an arbitration clause, and required waiver of such class action rights. The Gentry court laid out a four-factor test for determining whether a class waiver should… Read More

In Torres v. ProCollect, Inc., 2012 WL 1969280 (D.Colo. 2012), Judge Babcock found wanting a voicemail message left for a debtor under the FDCPA because it did not identify the debt collection agency. Thus, the only way for an identity disclosure to be meaningful to a consumer is if it discloses the name of the debt collection company. Moreover, “because… Read More

In Knutson v. Sirius XM Radio Inc., 2012 WL 1965337 (S.D.Cal. 2012), Judge Battaglia ordered a TCPA claim to arbitration, notwithstanding the consumer’s argument that arbitration would not afford him the ability to vindicate his TCPA rights as he would like. Judge Battaglia rejected the claim and ordered the matter to arbitration. Plaintiff asserts that if he is ordered to… Read More

In O'Brien v. American Exp. Co., 2012 WL 1609957 (S.D.Cal. 2012), Judge Skomal granted Plaintiffs' discovery requests to oppose a petition to compel arbitration filed by the Defendant in a TCPA class action.  The issue was framed as follows: Plaintiff also seeks to take discovery to support an unconscionability defense to the arbitration agreement. American Express argues that after the Supreme… Read More

In Beard v. Santander Consumer USA, Inc.,  2012 WL 1292576 (E.D.Cal. 2012), Judge McAuliffe enforced an arbitration clause against a servicemember who filed a class action against an automobile finance company arising from its predecessor’s repossession of the servicemember’s vehicle. In the underlying action, Beard brings a putative class action against Defendants alleging violations of the Servicemembers Civil Relief Act,… Read More

The Legislation is quite simple, purporting to amend Civil Code section 1589.5 as follows: (a) Any term in a contract of adhesion purporting to waive the right to join or consolidate claims, or to bring a claim as a representative member of a class or in a private attorney general capacity shall be deemed to lack the necessary consent to… Read More

SANCHEZ v. VALENCIA HOLDING COMPANY Case: S199119, Supreme Court of California Date (YYYY-MM-DD):        2012-03-21 Event Description:        Petition for review granted Notes: Cantil-Sakauye, C.J., Kennard, Baxter, Chin, Corrigan, and Liu, JJ. Read More