California Law On Class Action Waivers In Arbitration Agreements: As Clear As Mud

Navigating the shoals of California law on arbitration agreements has been exceedingly difficult.  The California Supreme Court has maintained a long tradition of general antipathy to mandatory arbitration, and has been particularly hostile to arbitration agreements that limit a plaintiff’s ability to pursue a class action.  For example, Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005), invalidated class action arbitration waivers contained in consumer contracts, and Gentry v. Superior Court, 42 Cal. 4th 443 (2007), set forth a stringent test for determining whether class action waivers should be upheld in the employment context. 

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