Recently my firm has become respondent in a case pending in the United States Supreme Court. The docket can be found here. The issue in this case is about the so called “Gentry” rule regarding class action waivers in arbitration agreements and whether such waivers or agreements in whole should be enforced. Our firm was successful in the California Court of Appeal of convincing the court to allow us to prove up the “Gentry” factors to determine if the matter should remain in court or be sent to individual arbitration. The lower court had determined that so called “Gentry” rule was overruled by the United States Supreme court's case of AT&T v. Concepcion. The Court of Appeals ruled that it was not, and remanded the issue to the trial court to consider further with an evidentiary hearing on the four part Gentry test.
The California Supreme Court denied review and now defendant's have filed a writ of certiorari to the United states Supreme Court. Defendant's have hired Michael Kellogg, the lawyer who recently scored a victory in American Express v. Italian Colors where the right to escape arbitration was further undermined. The good news is that it is highly unlikely that court will consider the case for a number of reasons, the first of which is because they take so few case. The second reason however, specific to this case is that it seems unlikely with the Iskanian case pending that the Supreme Court would leap frog the California Supreme Court in deciding this issue when the Iskanian case will address this very issue. We will keep you updated.