Refusal to Enforce Arbitration Agreement and Federal Preemption of FAA
1. Whether the Federal Arbitration Act permits a court to refuse to enforce an agreement calling for individual arbitration based on state labor law policies that do not apply generally to "any contract." 9 U.S.C. § 2.
2. Whether the Federal Arbitration Act permits a state court to refuse to enforce an agreement to arbitrate based upon an unconscionability analysis "that takes its meaning precisely from the fact that a contract to arbitrate is at issue." Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987).
NCLC urged the High Court to review a Ninth Circuit decision that refused to enforce a pre-employment arbitration agreement that included a class action waiver. After Robert Gentry ignored an arbitration agreement by filing a class action lawsuit against Circuit City, the court below refused to enforce the arbitration agreement. The court’s refusal to enforce the agreement is in direct conflict with the language of the Federal Arbitration Act and the Supreme Court’s decision in Perry v. Thomas. NCLC also argued that the court’s unconscionability analysis is hostile toward arbitration and conflicts with prior Supreme Court precedent.
The Supreme Court declined to review the case.
Amicus brief filed on 3/3/08. Cert denied 3/31/08.