Rex Heinke Quoted by The Recorder on Cali Supreme Court and Unconscionability Language

Akin Gump Supreme Court and appellate practice co-head Rex Heinke was quoted by The Recorder for its article “Justices Uphold Consumer Arbitration Clause” on a recent decision by the California Supreme Court regarding consumers and arbitration agreements.

According to the publication, the case involved a car buyer who claimed that an arbitration agreement in a sales contract could not be enforced because the contract was one-sided, favoring the car dealer. The CSC reversed an appellate court ruling in favor of the buyer, The Recorder reports.

Heinke noted that this could mark a syncing of the U.S. Supreme Court, which has favored arbitration, and the California Supreme Court, which has been more consumer-friendly: “I think there has been a shift, and the California Supreme Court is coming more in line with the U.S. Supreme Court.”

On the subject of a debate among the CSC justices regarding the need to agree on a single term to express unconscionability—in this context, a contract exceedingly one-sided in favor of the side with better bargaining position—which the publication reported was left unsettled, Heinke said, “What I think is going to be difficult going forward is there doesn't seem to be any clear rule as to what is or is not substantively unconscionable. It's very much a provision by provision review of the arbitration agreement.”