Rather than relying on the unconscionability doctrine, the court focused on the fact that Gentry's claim dealt with the "unwaivable" statutory right to receive overtime pay. 

The court concluded that 

"under some circumstances such a provision would lead to a de facto waiver and would impermissibly interfere with employees' ability to vindicate unwaivable rights and to enforce the overtime laws." 

"[W]hen it is alleged that an employer has systematically denied proper overtime pay to a class of employees and a class action is requested notwithstanding an arbitration agreement that contains a class arbitration waiver, the trial court must consider the factors discussed above: the modest size of the potential individual recovery, the potential for retaliation against members of the class, the fact that absent members of the class may be ill informed about their rights, and other real world obstacles to the vindication of class members’ right to overtime pay through individual arbitration. If it concludes, based on these factors, that a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration, and finds that the disallowance of the class action will likely lead to a less comprehensive enforcement of overtime laws for the employees alleged to be affected by the employer’s violations, it must invalidate the class arbitration waiver to ensure that these employees can 'vindicate [their] unwaivable rights in an arbitration forum.'" The court remanded for findings on these issues. 

Case below: Gentry v. Superior Court (Supreme Court of California 08/30/2007) (4-3 vote) 
Official docket sheet 
Certiorari denied, March 31, 2008.  

Question presented:  

1. Whether the Federal Arbitration Act permits a court to refuse to enforce an agreement calling for individual arbitration based on state labor law policies that do not apply generally to "any contract." 9 U.S.C. § 2.

2. Whether the Federal Arbitration Act permits a state court to refuse to enforce an agreement to arbitrate based upon an unconscionability analysis "that takes its meaning precisely from the fact that a contract to arbitrate is at issue." Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987).

Certiorari Documents: 

• Petition for writ of certiorari 
• Brief of respondent Robert Gentry 
• Reply of petitioner Circuit City Stores, Inc. 
• Brief amicus curiae of Chamber of Commerce of the United States in support of petitioner 
• Brief amici curiae of Ace American Insurance Company, et al. in support of petitioner 
• Brief amicus curiae of Pacific Legal Foundation in support of petitioner 

• For Petitioner Circuit City Stores, Inc.: Carter G. Phillips; Sidley Austin LLP; 1501 K Street, N.W.; Washington, DC  20005; cphillips@sidley.com; (202) 736-8270.  
• For Respondent Robert Gentry: Ellen Lake; Law Offices of Ellen Lake; 4230 Lakeshore Avenue; Oakland, CA 94610; (510) 272-9393.