Asserting the Right to Compel Arbitration
By Shaun Blake As last month’s decision by the Central District of California in the Toyota Hybrid Brake Class Action case demonstrates, simply raising a contractual right to arbitrate as an affirmative defense may not be enough to protect a party's right to compel arbitration. In its Answer, Toyota raised as an affirmative defense an arbitration clause contained in certain dealer agreements excuted by the Class Plaintiffs (purchasers of hybrid vehicles with allegedly defective anti-lock braking systems). Thereafter, in support of its subsequent Motion to Compel Arbitration, Toyota contended that it had preserved the right to compel arbitration as it awaited the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion , 131 S. Ct. 1740 (2011). Toyota argued that, prior to Concepcion , any motion to compel arbitration would have been futile because class action waivers were generally unenforceable under California law. The Court disregarded Toyota’s argu