August 3, 2015

Have California courts got the message? Arbitration contracts should be enforced like other contracts

By Have California courts got the message? Arbitration contracts should be enforced like other contracts

For years, PLF has been chronicling—and combating—the efforts of California courts to nullify arbitration contracts. Federal law requires that states enforce arbitration agreements just like any other contract, but California courts have found various loopholes to avoid enforcing such agreements, largely because they regard arbitration as basically unfair toward consumers. This is a common charge, especially from left-leaning lawyers, who think that arbitrators tend to be more friendly to businesses, and that arbitration doesn’t provide the sorts of procedural guarantees for consumers that courts provide.

(Incidentally, it’s always seemed odd to me that the people who make these arguments rarely express much concern about hearings in administrative agencies, which are far more biased against citizens and toward government. If you think arbitration’s bad, you just try defending a citizen in an administrative hearing, where the prosecutor is paying the judge, and where the ordinary rules of evidence and courtroom procedure don’t apply. When a citizen appeals an administrative decision, the courts aren’t free to reconsider the facts; unlike in arbitration, the rules forbid a reviewing court to consider any evidence other than what the agency considered. And, unlike arbitration, a citizen has no choice about whether his case will be reviewed in an agency hearing. In recent years, the U.S. Supreme Court and some law professors have expressed concern over these unfair practices, but this typically comes from political conservatives, not liberals. Why is it that liberals, so concerned about the unfairness of arbitration—which is voluntary, and where a real judicial appeal is typically available—are fine with the involuntary administrative procedures that unfairly favor the government, and from which appeals are often futile formalities?)

The California judiciary’s massive resistance to arbitration has led to some smackdowns by the U.S. Supreme Court, most recently in a case called AT&T v. Concepcion, which once again made clear that while state courts may refuse to enforce arbitration agreements, they may do so only for the same reasons that allow them to refuse enforcement of ordinary contracts. They can’t make special rules that bar arbitration agreements.

Today, the California Supreme Court got the message. In Sanchez v. Valencia Holding Company, the plaintiff bought a Mercedes Benz, apparently without reading the sales contract he signed. It provided for arbitration, and waived his right to bring class-action arbitration. Later, when he decided he’d been cheated, he brought a class-action lawsuit against the car dealer. The dealer tried to get the arbitration agreement enforced, but the court ruled that it was “unconscionable” and therefore unenforceable. One reason he argued it was unconscionable was…that he hadn’t read it.

We filed this brief, arguing, among other things, that you can’t say a contract’s unenforceable just because you didn’t bother reading before signing. We pointed out that the Concepcion decision makes absolutely clear that all contracts must be treated alike—and arbitration agreements must be enforced as other contracts are.

Today, the California Supreme Court agreed, and upheld the arbitration agreement. “The dispute in this case concerns a high-end luxury item. Sanchez does not claim, and no evidence in the record suggests, that the cost of appellate arbitration filing fees were unaffordable for him, such that it would thwart his ability to take an appeal in the limited circumstances where such appeal is available. We therefore conclude on the record before us that the arbitral appeal fee provision is not unconscionable.”

Unfortunately, the court does keep the door open for a case-by-case determination of whether an arbitration contract will be enforced. In a separate, sometimes severe, opinion, Justice Chin writes that there’s no basis for the court’s conclusion that the contract was kinda-sorta unconscionable. And it is based on that conclusion that the court goes on to determine whether, in this particular instance, the contract was “adhesive” or “oppressive.” But such a case-by-case determination invites judicial monitoring of every contract that Californians make, which is obviously not what the Federal Arbitration Act has in mind. The rule is supposed to be simple: if people freely agree to an arbitration contract, they must stick to it. But the California Supreme Court’s assertion that “the adhesive nature of the contract is sufficient to establish some degree of procedural unconscionability” gives it room to review every step of the contract in search of some grounds to void it. It didn’t find such grounds in this case, but the way is still open for any future decision to rule an arbitration clause invalid if a court is so inclined. It therefore remains to be seen whether the court has at last got the message that arbitration agreements must be enforced like other contracts—or whether it’ll use that rule as grounds to double-check every contract Californians sign.

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