Cipolla

INTRODUCTION

18 Before our court of appeals, defendants succeeded in obtaining an order that the 19 arbitration clause delegated the question of unconscionability to the arbitrator. On remand, 20 therefore, this Court required both plaintiffs to proceed to arbitration and stayed the case. Each 21 plaintiff got a different arbitrator. One of the arbitrators ruled that the arbitration clause was 22 unconscionable and therefore unenforceable. The other arbitrator found that the provision was 23 enforceable. The plaintiff who prevailed before the arbitrator now seeks to vacate the stay and 24 to proceed in the district court (Dkt. Nos. 1, 23, 25, 41, 48, 53). 25 Defendants resist on the ground that the other arbitrator came out the other way. The 26 proper answer is the case will proceed in the district court as to the plaintiff for whom the 27 arbitrator found the agreement is unconscionable. The other plaintiff will proceed in arbitration (unless that arbitrator changes his or her mind). Having insisted on submitting the question of arbitrability to an arbitrator and having stripped plaintiffs of their right to class treatment, defendants will not be allowed…