‘Like a Classic Clown Bop Bag’

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Here’s the opening paragraph of Ninth Circuit judge Sandra Ikuta’s dissent today in Chamber of Commerce v. Bonta:

Like a classic clown bop bag, no matter how many times California is smacked down for violating the Federal Arbitration Act (FAA), the state bounces back with even more creative methods to sidestep the FAA. This time, California has enacted AB 51, which has a disproportionate impact on arbitration agreements by making it a crime for employers to require arbitration provisions in employment contracts. And today the majority abets California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it bars only nonconsensual agreements. The majority’s ruling conflicts with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark (2017), and creates a circuit split with the First and Fourth Circuits. Because AB 51 is a blatant attack on arbitration agreements, contrary to both the FAA and longstanding Supreme Court precedent, I dissent. [Some citations omitted or simplified.]

The majority opinion is by Judge Carlos Lucero, visiting from the Tenth Circuit, joined by Judge William Fletcher.

Mark this one for Supreme Court reversal. (Even then-Governor Jerry Brown vetoed similar previous versions of AB 51 on the ground that they were contrary to Supreme Court precedent.) I doubt that the Chamber of Commerce and the other plaintiff business associations will waste their time seeking en banc review in the Ninth Circuit.

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