Remand of Sonic-Calabasas A, Inc. v. Moreno may provide more guidance on status of arbitration defenses in California

On Monday, October 31, 2011 (hello, Halloween), the United States Supreme Court issued the following Order:

10-1450 SONIC-CALABASAS A, INC. V. MORENO, FRANK The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Supreme Court of California for further consideration in light of AT&T Mobility LLC v. Concepcion, 563 U.S. ___ (2011).

In Sonic Calabasas A, Inc. v. Moreno (2011), reported at 51 Cal. 4th 659, a divided California Supreme Court (4-3) concluded that (1) "Berman" hearings are an unwaivable statutory right, (2) arbitration is an acceptable alternative to de novo review by the Superior Court, (3) a waiver of the right to a "Berman" hearing before the Labor Commissioner is against public policy, and (4) the waiver of a "Berman" hearing is unconscionable under standard contractual principles of unconscionability analysis.

What does this mean?  It means that the underpinnigs of Gentry may be explored in the follow-up opinion.  It also means that the new Justices, including the new Chief Justice of the California Supreme Court, may be deciding votes, given that Chief Justice George was in the majority and Justice Moreno authored the original opinion.