Discover Bank v. Superior Court

BAXTER, J., Concurring and Dissenting.

I concur in part and dissent in part. I agree with the majority that federal law does not compel enforcement of contractual class action waivers simply because they are contained in *175arbitration agreements. But I lament the majority’s determination to use this case as a vehicle to resolve the issue of California’s policy on class action waivers. For two reasons, we need not, and should not, confront that question here.

First, because the Court of Appeal upheld the instant waiver solely by finding federal preemption of any California antiwaiver policy, that…