California's unconscionability test is alive and well

With the courts looking at likely delays as they catch up from COVID-19-related shutdowns, arbitration becomes more appealing for parties looking for a quick resolution without spending time in the courthouse. The California courts of appeal have been pretty predictable in how they enforce arbitration agreements, although we likely will be hearing more from the California Supreme Court on the issue soon.

Can transportation workers arbitrate? We never find out

We have often noted that the Federal Arbitration Act (FAA) is strongly supportive of most arbitration agreements. But it has a carve-out for workers in interstate transportation. Daylight Transport LLC is a "less than full truck load" carrier that delivers goods in interstate commerce. It categorized its drivers as independent contractors, and their contractor agreements had arbitration clauses in them.

Those clauses provided that any dispute would be brought to arbitration before the American Arbitration Association (AAA) under the AAA Commercial Arbitration Rules (rather than the AAA Employment Arbitration Rules). It also required that arbitration be filed within 120 days of the occurrence giving rise to the dispute. In addition, it protected the "company's right to obtain . . . injunctive relief, writ for recovery of possession or similar relief from any court . . . as may be necessary in Company's sole subjective judgment to protect its property rights."