This is another post-Conception decision by the California Court of Appeal holding that notwithstanding Conception, in certain circumstances, based on a case-by-case analysis, class action waivers may be unenforceable.

Last week, we discussed how in Iskanian, the Court of Appeal (Second Appellate District, Division Two)  held that the arbitration agreement could not be found unconscionable under Code Civ. Proc., § 1281, based on interference with the ability to vindicate statutory rights. 

In 2007, in Gentry v. Superior Court (2007) 42 Cal.4th 443, the California Court of Appeals held  that a class waiver provision in an arbitration agreement should not be enforced if “class arbitration would be a significantly more effective way of vindicating the rights of affected employees than individual arbitration.”

Last week, in Salome Samaniego, et. al. v. Empire Today, LLC (May 2012), the California Court of Appeals refused to enforce an arbitration clause in the context of wage and hour litigation on the grounds that the  arbitration provision was procedurally and substantively unconscionable. 

Arbitration is a form of Alternative Dispute Resolution (ADR) that allows employers and non-union employees to resolve disputes out of court by submitting the matter to a mutually-selected arbitrator. Arbitration is generally preferred by employers because the proceedings are confidential, speedy, less expensive than litigation, flexible, and most importantly final.