Bilateral arbitration is under increasing attack. While businesses evaluate whether and how to update their arbitration clauses in light of the U.S. Court of Appeals for the Ninth Circuit's October decision in Heckman v. Live Nation Entertainment, wherein the Ninth Circuit found that the Federal Arbitration Act did not apply to, or protect, the mass arbitration model set forth in the arbitration agreement at issue,[1] we write to remind them of another thorn in enforcing arbitration agreements: an almost 30- year-old decision from a California state appeals court in Badie v. Bank of America, and its progeny.
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