Paul Kirgis: Occupy Arbitration? Judicial Nonviolent Resistance

Here.  Paul is a colleague of mine.  Here's an excerpt:

In this year of nonviolent resistance, at least some lower courts seem to be engaging in a protest of sorts, seeking ways to avoid the inevitable logic of the recent decisions, especially Concepcion. Not surprisingly, California leads the resistance. For example, in its recent decision in Sanchez v. Valencia Holding Co., the California Court of Appeal invalidated an arbitration agreement containing a class waiver in a used car contract on unconscionability grounds, finding that the agreement was a contract of adhesion and unfairly one-sided (the court focused on a variety of terms besides the class-action waiver). And in Brown v. Ralphs Grocery Co., the California Court of Appeal invalidated a class-action waiver in an arbitration agreement as applied to a representative action under California’s Private Attorney General Act, which allows a plaintiff to bring an action on behalf of other employees to enforce the Labor Code, in the process distinguishing representative actions from class actions.