| " I don't see how the fact that the state rule would only render part of an arbitration agreement unenforceable, as opposed to the entire agreement (like the CA rule did), matters. " I'm very surprised you would say that. It matters quite a lot. Rules affecting the procedure by which you get process are very different than rules as to whether you get process at all, and i'm not aware of any case ever holding otherwise.
IE a rule that says "if you have a dispute under $2000, you are always allowed to go to small claims court" is very different than a rule that says "if you have a dispute under $2000, you can't sue anyone at all". In practice, saying things like "you may not appeal" would usually be valid limits on procedure when "you may not sue" will not be. I mean, this is essentially saying "i don't see why whether it's procedural or substantive due process would matter". You are citing a decision that examined whether, based on regular old public policy, you could get out of a classwide arbitration waiver. Yes, it says a bunch about how that ain't gonna happen.
It also says things like: "In that case we held that an arbitration panel exceeded its power under ยง10(a)(4) of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background principle of contract law that would affect its interpretation" Note specifically that it's saying policy judgements cannot override the FAA. It also explicitly says background principle of contract law may affect its interpretation. One of those background principles is traditionally being state law on how contracts are interpreted and what is allowed or not allowed. In fact, that's where all the contract law they talk about is coming from. There is no federal contract law. This seems 100% consistent with the case i cited to you, which explicitly allowed a California state contract law to affect the rules of how an arbitration agreement proceeded under the FAA.
That case is still good law from the Supreme Court, was explicitly not overruled, and appears to be exactly the kind of thing they leave open in the quoted part above, so until i hear otherwise, i'm going to go with that :) It's 100% clear you aren't going to get out of it based on public policy. "(Also, if there was a possible "backdoor" way of prohibiting class waivers while still complying with Concepcion, I expect California would have tried it already.)" Last i looked, there is pending legislation on this matter, so ... |