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Winston & Strawn LLP v. Constance Ramos, et al.

Paid petition · Court of Appeal of California, First Appellate District, No. A153390 · judgment November 28, 2018

Certiorari denied · October 7, 2019
Pre-decision estimate: 6% cert probability (95% interval 4%–9%)

Before the decision, about 1.5× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a dissent in the court below (flagged in the petition), and a business petitioner.

Questions presented

In AT&T Mobility LLC v. Concepcion, this Court reiterated that the Federal Arbitration Act (FAA) requires courts to “place arbitration agreements on an equal footing with other contracts.” 563 U.S. 333, 339 (2011). That means that courts may not craft “legal rules that apply only to arbitration” or that disproportionately disadvantage arbitration. Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1426 (2017) (internal quotation marks omitted). In this case, the California Court of Appeal invalidated an arbitration agreement in light of a pre-Concepcion opinion, Armendariz v. Foundation Health Psychare Services, Inc., 6 P.3d 669 (Cal. 2000), which the California Supreme Court has continued to endorse. The questions presented are:

  1. Under Armendariz, an arbitration provision in an employment agreement cannot be enforced as written unless it meets five judge-made “minimum requirements” based on policy judgments about what would be necessary to vindicate state statutory rights in an arbitral forum, and also complies with arbitration-specific unconscionability rules. Are those arbitration-specific requirements and rules preempted by the FAA?

  2. Armendariz requires courts to apply a more rigid severability rule to arbitration agreements than to all other contracts: When an arbitration provision has more than one invalid term, the whole provision is presumptively invalid. Is this arbitration-only severability rule preempted by the FAA?

Counsel of record

For petitioner
E. Joshua Rosenkranz
Orrick, Herrington & Sutcliffe LLP

For respondent
Karla Ann Gilbride

Case

Conference history
Distributed for 1 conference

Amicus briefs
6 cert-stage

Proceedings

  1. Oct 07 2019
    Petition DENIED.
  2. Aug 14 2019
    DISTRIBUTED for Conference of 10/1/2019.
  3. Aug 13 2019
    Reply of petitioner Winston & Strawn LLP filed.
  4. Jul 31 2019
    Brief of respondents Constance Ramos, et al. in opposition filed.
  5. Jul 16 2019
    Motion to extend the time to file a response from July 17, 2019 to July 31, 2019, submitted to The Clerk.
  6. Jul 16 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including July 31, 2019.
  7. Jun 17 2019
    Brief amicus curiae of Washington Legal Foundation filed.
  8. Jun 17 2019
    Brief amicus curiae of Center for Workplace Compliance filed.
  9. Jun 17 2019
    Brief amicus curiae of Ropes & Gray LLP filed.
  10. Jun 17 2019
    Brief amici curiae of Civil Justice Association of California, et al. filed.
  11. Jun 17 2019
    Brief amicus curiae of Atlantuc Legal Foundation filed.
  12. Jun 14 2019
    Brief amicus curiae of DRI-The Voice of the Defense Bar filed.
  13. Jun 12 2019
    Letter of consent to the filing of amicus briefs from respondent Superior Court of California, County of San Francisco .
  14. Jun 11 2019
    Letter of consent to the filing of amicus briefs from respondents Constance Ramos, et al.
  15. Jun 10 2019
    Blanket Consent filed by Petitioner, Winston & Strawn LLP.
  16. Jun 07 2019
    Motion to extend the time to file a response is granted and the time is extended to and including July 17, 2019.
  17. Jun 04 2019
    Motion to extend the time to file a response from June 17, 2019 to July 17, 2019, submitted to The Clerk.
  18. May 14 2019
    Petition for a writ of certiorari filed. (Response due June 17, 2019)