A clause delegating to an arbitrator the authority to decide questions of an arbitration agreement’s enforceability was not unconscionable under California law, the California Court of Appeal has ruled. Malone v. Superior Court, No. B253891 (Cal. Ct. App. June 17, 2014). The Court affirmed an order enforcing the delegation clause and compelling arbitration. Significantly, the Court rejected, as preempted by the Federal Arbitration Act (“FAA”), California case law reasoning that such delegation clauses are unconscionable because arbitrators have a financial self-interest in finding an agreement arbitrable — so that they can be compensated for arbitrating the dispute on the merits and be considered for further arbitration assignments.

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Photo of Mark S. Askanas Mark S. Askanas

Mark S. Askanas is a principal in the San Francisco, California, office of Jackson Lewis P.C. He joined the firm in 1988 and is a senior employment law litigator who has served as lead counsel for cases in state and federal courts, as…

Mark S. Askanas is a principal in the San Francisco, California, office of Jackson Lewis P.C. He joined the firm in 1988 and is a senior employment law litigator who has served as lead counsel for cases in state and federal courts, as well as arbitration forums, throughout the western United States.

Mark practices all forms of complex litigation, including class actions and cases involving trade secrets and confidential information. He also counsels employers on all facets of employment law including, but not limited to, wage and hour issues and best preventive employment practices. He regularly speaks throughout the United States to employer groups and trade associations on these and other topics.

Photo of Mitchell F. Boomer Mitchell F. Boomer

Mitchell F. Boomer is the office managing principal in the Austin, Texas, office and a principal in the San Francisco, California, office of Jackson Lewis P.C. Since joining the firm in 1992, he has represented employers in all areas of employment litigation, including…

Mitchell F. Boomer is the office managing principal in the Austin, Texas, office and a principal in the San Francisco, California, office of Jackson Lewis P.C. Since joining the firm in 1992, he has represented employers in all areas of employment litigation, including wrongful termination, employment discrimination, retaliation, whistleblower, trade secret and unfair competition cases in federal and state courts in California, Washington and Nevada.

Mitch regularly advises clients on employee discipline, layoffs, reductions in force, human resource policies, leave management and disability matters. Mitch frequently addresses private industry groups on a variety of employment topics, including sexual harassment in the workplace, unfair competition, workplace violence, wage and hour law, preventive employee relations, disability and leave management, and current developments in federal and state labor and employment law.