From Bridgeport's 6th Annual Wage & Hour Litigation Conference: Future attacks on Gentry v. Superior Court

I'm attending Bridgeport's 6th Annual Wage & Hour Litigation Conference. Today, one topic of discussion is the subject of class arbitrations after Gentry. According to Steven Katz, partner at Reed Smith LLP, Gentry is one of the California Supreme Court's most erroneously-reasoned decisions in quite some time. That's not the interesting part (it's the funny part). The interesting commentary comes from how the defense bar hopes to limit Gentry.

Mr. Katz starts from the premise that Gentry. does not state a bright-line rule precluding class action waivers in all wage & hour class actions. The defense bar hopes to elicit further review of Gentry by challenging trial and appellate orders that impose a bright-line rule when invalidating arbitration agreements with such waivers. The protective measure that plaintiffs should take is to draft proposed orders that identify the four-factor test from Gentry as having been satisfied.

The second major challenge to Gentry that is being tested at the appellate level is a species of "field" preemption. The defense contention is that Gentry allows for a type of contract impairment that isn't directed at arbitration agreements directly, but nevertheless affects only those types of agreements. This argument disregards the fact that the principles in Gentry are subject-neutral. It is merely the nature of the effect of these agreements that renders them invalid. The factors in Gentry don't seek out just arbitration agreements with class action waivers. Despite that weakness in the defense-side argument, plaintiffs should handle these arguments with great care. This species of "field" premption is very complex, and the attorneys bringing these arguments often have an advantage in the form of repeated experience with them. Don't take a novel preemption argument lightly.

Consumer Attorneys of San Diego offers its Second Annual Class Action Symposium on October 23-24

The educational opportunities for class action practitioners in California improved greatly in recent years (oddly coincident with significant increase in the number of attorneys trying their hand at class action litigation).  One of those great new opportunities for class action CLE occurs this Friday and Saturday in San Diego's gaslamp quarter.  Consumer Attorneys of San Diego will present its 2nd Annual Class Action Symposium.  The speakers include judges, mediators, and practitioners from both sides of the "v."

The blogosphere will be well represented by speaker Kim Kralowec, The UCL Practitioner and a Partner at Schubert Jonckheer Kolbe & Kralowec LLP.  And speaking of The UCL Practitioner, her blog now notes that you can register for one day of the two day symposium.  If obligations on Friday prevent you from attending, consider attending on Saturday.  You can also save money by registering more than one attendee from the same firm.

If nothing else, send the youngest attorneys in your firm so they can learn first hand from the people that do it right.  Because of the special nature of representative litigation, we have an obligation to maintain the highest possible practice standards.