Court Summarizes Fractured Opinion About Gentry
Rivera v. Hilton Worldwide, Inc., Case No. G047644 (4th Dist. Div. 3 Nov. 26, 2013) (unpublished) is one more wage and hour case in which the employee is ordered to arbitrate individual claims and the Court upholds dismissal of class claims without prejudice. The Court finds that the arbitration clause is not unconscionable, that the parties did not agree to authorize class arbitration (following Stolt-Nielsen S.A. v. Animalfeeds International, 559 U.S. 662 (2010)), that individual substantive rights could be litigated in arbitration, and that the NLRB decision D.R. Horton, holding dismissal of class action claims violates substantive federal rights of employees, is not persuasive authority.
The Court also neatly summarizes the fractured state of law concerning application of the “four Gentry factors” to determine whether waiver of a class action is unconscionable:
“[C]ases are split as to whether Gentry remains viable.(Compare e.g., Kinecta, . . . 205 Cal.App.4th at p. 516 [‘Gentry appears to remain the
binding law in California’ despite Concepcion; dicta; italics added; Truly Nolen v. Superior Court, . . . 208 Cal.App.4th 487 [although Concepcion ‘implicitly disapproved’ Gentry, court will not ‘disregard’ decision without ‘specific guidance’ from California Supreme Court] with, e.g., Morvant v. P.F. Chang’s China Bistro, Inc. (N.D.Cal. 2012) 870 F.Supp.2d 831, 840-841 [no distinction between Discover Bank and Gentry and class action waiver must be enforced under Concepcion].) The California Supreme Court is considering this issue in Iskanian v. CLS Transportation of Los
Angeles, LLC (2012) 206 Cal.App.4th 949 (Iskanian), review granted September 19, 2012, S204032.”
And then, like many other Courts, the panel ducks the issue: “But we need not decide this question because even if the case remains good law, plaintiff has not satisfied his burden under Gentry.”