Concepcion has no application in many employment cases

/

About a week ago, on behalf of Consumer Attorneys of California ("CAOC"), I filed an amicus curiae brief in support of the plaintiff in Brown v. Ralphs Grocery Company.  In Brown, after oral argument, the Court of Appeal requested supplemental briefs on the question of whether AT&T Mobility LLC v. Concepcion (April 27, 2011) precludes the Gentry v. Superior Court (2007) 42 Cal.4th 443 defense to certain arbitration agreements.  After determining that the parties had not already addressed the issues, CAOC presented several bases for rejecting the contention that Concepcion overruled Gentry, including the fact that a bar on class actions violates the National Labor Relations Act's protection of concerted action by employees to improve their wages and working conditions.  You can view the brief viat the Spiro Moss website here.

Other attorneys at Spiro Moss contributed to the brief, including Dennis F. Moss (who conceived of the argument involving the NLRA), Gregory N. Karasik, and J. Mark Moore.  David M. Arbogast of Arbogast & Berns LLP also contributed to CAOC's brief.

Inability to pay arbitration costs is not a valid basis to lift a litigation stay imposed pursuant to 1281.4

/

I decree that anything having to do with franchises or arbitration agreements is generally complex.  Thus, a franchise law case in which arbitration issues are at issue is guaranteed to be complex litigation.  That said, this next case is easy to summarize.  In MKJA, Inc. v. 123 Fit Franchising, LLC (January 4, 2011), the Court of Appeal (Fourth Appellate District, Division One) considered whther a trial court properly lifted a stay of litigation that had been imposed pursuant to section 1281.4, on the ground that the plaintiffs could not afford to pay the costs associated with arbitration.

The plaintiffs sued for violation of the California Franchise Investment Law (Corp. Code, § 3100 et seq.), breach of contract, unfair business practices (Bus. & Prof. Code, § 17200 et seq.), and fraudulent inducement.  The defendant filed a motion to stay pursuant to Code of Civll Procedure § 1281.4 on the ground that it had filed a petition in Colorado to compel arbitration of the disputes.  The Court did note that section 1281.4 contained language that had not been interpreted by any California Court:

We assume, for purposes of this decision, that a trial court possesses some amount of discretion to lift a stay imposed pursuant to section 1281.4, prior to the completion of an ordered arbitration. However, the statute does not address the scope of that discretion. Based on the purpose of section 1281.4 as stated by the Federal Ins. Co. court and the context in which the operative statutory language appears, we conclude that a trial court may not lift a stay of litigation merely because a party cannot afford the costs associated with arbitration.

Slip op., at 20.