California Supreme Court,
Labor/Employment,
Letters
Jul. 8, 2014
Gentry was humanely, deliberately put to bed
I take issue with several points made by Steven Katz in his recent column on the state Supreme Court's recent decision in Iskanian, "California finally falls in line on arbitration," June 30.
Eric B. Kingsley
Partner, Kingsley & Kingsley APC
Labor & Employment
16133 Ventura Blvd #1200
Encino , CA 91436
Phone: (818) 990-8300
Fax: (818) 990-2903
Email: eric@kingsleylawyers.com
Loyola Law School; Los Angeles CA
Eric is the former board chair of the Anti-Defamation League's Los Angeles Region.
I take issue with several points made by Steven Katz in his recent column on the state Supreme Court's recent decision in Iskanian v. CLS Transportation Los Angeles LLC, 2014 DJDAR 8037 (June 23, 2014). ["California finally falls in line on arbitration," June 30]. First, he asks rhetorically why it took California so long to fall into line on this obvious feature of Federal Arbitration Act jurisprudence. The obvious answer is that AT&T Mobility LLC v. Concepcion flew in the face of basic fairness and certain principles that California courts had long applied when looking at arbitration agreements in contracts of adhesion.
California courts attempted to distinguish the decision to find room for class actions, because they recognized that Concepcion all but extinguished this important mechanism. California courts could not believe that the U.S. Supreme Court really meant to signal the death knell for class actions. To use a phrase from Armendariz v. Foundation Health Psychcare Svcs. Inc., the Concepcion decision "shocks the conscience." While Concepcion may be a way to stop what the business community perceives as lawsuit abuse, in the process it permits businesses to abuse the marketplace and cheat its workers without fear of real repercussions. Let's call Concepcion what it is: a get-out-of-jail-free card for employers. Enforcing the FAA in the way that the five-justice majority of the Supreme Court would have us believe Congress intended in the 1920s only assists corporations from escaping liability when they mislead consumers or treat workers in an unlawful manner. While some individual workers may get redress in arbitration, the vast majority whose claims are of substantial value to them but are too small for the average lawyer are left uncompensated and abused. Katz also argues that the state Supreme Court admitted it was wrong in Gentry v. Superior Court because of new blood on the court. Nothing could be further from the truth. The fact that Gentry died was not the result of the state Supreme Court finally "getting it." Gentry died because California Supreme Court Justice Goodwin Lui knew it was going to die, and instead of having U.S. Supreme Court Justice Antonin Scalia kill it, he humanely dealt the final blow himself. By killing Gentry in this way, the hope is that the Private Attorney General Act survives. If the court had saved Gentry, it is a forgone conclusion that the U.S. Supreme Court would have shot it down dead and maybe taken PAGA along with it for good measure. The Iskanian decision may avoid the wrath of the U.S. Supreme Court by offering Gentry as a sacrificial lamb. Finally, Katz seems to foreshadow the next big fight the defense bar has in mind: an all-out attack on Armendariz. He attempts to argue that Sonic-Calabasas A Inc. v. Moreno will be a proxy fight for Armendariz, and that U.S. Supreme Court review "is not certain, but it is a very real possibility." Unfortunately, the U.S. Supreme Court denied the petition for certiorari in Sonic on June 9. As such, if that issue is going to be addressed at all, it will have to be taken up in a different case. We can all agree that the death of Gentry was not surprising given Concepcion and American Express Co. v. Italian Colors Restaurant, but no one "fell in line." Our Court killed Gentry, but they did so reluctantly. The reality is, all it takes is one personnel change in Washington for California to resurrect Gentry.Submit your own column for publication to Diana Bosetti
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