Our clients generally prefer arbitration to litigation. Arbitration is less expensive, has much more balanced discovery, and it’s faster. It’s probably not statistically significant, but we think we’ve seen an uptick in cases in our practice footprint involving arbitration clauses. The cases we’ve blogged about recently involve some kind of direct interaction with a patient where a manufacturer can include an arbitration clause in the terms of a contract. Examples include the on-line sale of dental aligners and a glucose monitoring app for a patient’s smartphone. Today’s decision, Johnson v. Luminary Genetics, 2026 WL 2886002 (S.D. Cal. Sept. 25, 2026), is another instance where a manufacturer included an arbitration clause in its contract with a consumer—this time in the context of genetic testing.
Plaintiffs in Johnson were three individuals who purchased genetic testing to determine whether an embryo to be implanted by in vitro fertilization had the correct number of chromosomes. They filed a putative class action claiming that the defendant committed deceptive acts and practices in the marketing of the testing. The defendant required execution of a “uniform patient consent form” by anyone utilizing its genetic testing services, and the form included a mandatory arbitration provision. All three plaintiffs executed those consent forms before undergoing the genetic testing. After plaintiffs filed suit, the defendant moved to compel arbitration.
The court began its analysis by noting that, under the Federal Arbitration Act, its role is limited to deciding “(1) whether a valid agreement to arbitrate exists, and, if it does, (2) whether the agreement encompasses the dispute at issue.” Id. at *2 (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). But the arbitration clause in Johnson contained a “delegation” clause, in which the parties delegated to the arbitrator decisions about the scope and enforceability of the arbitration agreement. When the parties include such a delegation clause, then the court’s only role is to determine whether there is an executed arbitration agreement. “A valid—i.e., enforceable—delegation clause commits to the arbitrator nearly all challenges to an arbitration provision.” Id. at *2 (quoting Caremark, LLC v. Chickasaw Nation, 43 F.4th 1021, 1029 (9th Cir. 2022)). That’s it. If there is a properly executed arbitration agreement containing a delegation clause providing that the arbitrator will decide scope and enforceability, then there is no further role for the court.
Plaintiffs tried to show there was not a valid arbitration agreement by arguing that the defendant was not a signatory. The defendant easily countered that with a declaration and state business filing showing that the defendant named in the lawsuit was a registered trade name for the corporate entity that signed the arbitration agreement. That was sufficient for the defendant to enforce the arbitration agreement.
Losing on the signatory argument, plaintiffs claimed the arbitration agreement was unconscionable. They argued that the alleged misrepresentations by the defendant all occurred in advertisements the plaintiffs saw before executing the patient consent forms. But those arguments were directed at the arbitration agreement as a whole, and a decision on those types of claims were delegated to the arbitrator. Aside from the delegation clause, a party trying to avoid application of an arbitration clause based on unconscionability must show “both procedural and substantive unconscionability, and attorney argument is not evidence.” Id. at *3. Plaintiffs did not meet that burden.
Unable to avoid arbitration, plaintiffs’ fallback argument was that arbitration should be on a class-wide basis. The court said no. The consent form plaintiffs signed did not authorize class arbitration, and the American Arbitration Association rules incorporated into the arbitration agreement delegated any question about class arbitration to the arbitrator. As a result, the court held that the plaintiffs were required to arbitrate their claims individually.
Holding that the cases should move to arbitration on each plaintiff’s individual claims, the court stayed the proceedings. Moving from a putative class claim in California to three individual arbitration actions sounds like a resounding victory to us. It’s also another example of how an arbitration clause can be utilized to preclude product liability adjacent claims.