A call to 'Armendariz'

In 2000 the California Supreme Court set minimum standards for employment arbitration contracts in Armendariz v. Foundation Health Psychcare Services, Inc. 24 Cal.4th 83. The ruling sought to ensure that employees who bargained away court access would nevertheless be able, in the private forum, to effectively vindicate rights and seek remedies provided by state law. Armendariz's guarantees render unenforceable agreements that don't prescribe neutral arbiters or sufficient discovery, and ones that place significant financial demands on complainants or require them to effectively waive statutory rights or remedies.

But since then the U.S. Supreme Court has rendered a series of arbitration rulings favoring a broad construal of the Federal Arbitration Act, and directing lower courts to generally resist striking agreements by virtue of their conflict with state laws or policies. E.g. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); DirecTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015); Lamps Plus, Inc. v. Varela, 2019 DJDAR 3349 (U.S. April 24, 2019). This has led some to argue that Armendariz's standards have been implicitly invalidated by those more recent high court decisions.

Now, Winston & Strawn LLP, hoping to send to arbitration a dispute with former partner Constance Ramos, is asking SCOTUS to explicitly declare as much. The firm was joined in June by a cohort of defense-side amici likewise calling for certiorari and reversal of a California Court of Appeals ruling that reaffirmed the validity of Armendariz.

This week's episode features in-depth conversations with two attorneys involved in the matter: Karla Gilbride, of Public Justice, who represents the plaintiff/respondent, and Fred Hiestand, solo practitioner and general counsel for the Civil Justice Association of California, who filed a defense-supporting amicus brief.