The 9th U.S. Circuit Court of Appeals made an unusual move on Aug. 22, deciding to rehear a case dealing with arbitration agreements in California, called U.S. Chamber of Commerce v. Bonta.

In that decision, the court upheld a California law, AB 51, which prohibited employers from requiring workers to sign arbitration agreements. Judge William Fletcher and Judge Sandra Ikuta voted to withdraw the decision and rehear the case, while Judge Carlos Lucero voted against rehearing.

"I think it's pretty unusual" to rehear a case, said Gary McLaughlin, an attorney with Mitchell Silberberg & Knupp in Los Angeles.

"If [one judge] were to flip, then you'd have a majority opinion going the other way," he added. "It's possible they could come to the same conclusion they did before. It seems unlikely that they would rehear the case and come to the same conclusion. It's likely going to shift in some way. It's unclear to what extent. We just have to wait and see."

It's uncertain when the new opinion will be released. "We're in a state of limbo," said Adam Karr, an attorney with O'Melveny & Myers in Los Angeles. "We're cautiously optimistic that this is good news from the employer's perspective. The original opinion from an employer's perspective was not particularly favorable, and Judge Lucero stated the view very clearly as to why this [state] law was pre-empted by the Federal Arbitration Act (FAA)."

As things stand now, California employers can still mandate arbitration...

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