State Law Issues In Severability Of Arbitration Agreements

Law360, New York (February 16, 2016, 1:49 PM EST) -- MHN Government Services Inc. v. Zaborowski was part of an ongoing debate over the extent to which unconscionability defenses may preclude employers from enforcing predispute arbitration agreements against their employees. MHN presented the U.S. Supreme Court with broad, state law questions concerning California's rules of severability; as well as a specific challenge to a Ninth Circuit decision[1] refusing to sever unconscionable provisions from an employer-imposed arbitration agreement and to then enforce the remainder of the agreement. MHN has now been taken off calendar, and the case apparently has been settled.[2] The state law questions at issue in MHN are likely to arise in other cases, however. Therefore, now is a good time to correct the erroneous suggestion that California applies a separate rule of severability to arbitration agreements; and to consider the interplay between California's doctrines of severability and unconscionability....

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