BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session SB 1241 (Wieckowski) Version: April 18, 2016 Hearing Date: April 26, 2016 Fiscal: No Urgency: No RD SUBJECT Contracts DESCRIPTION This bill, with respect to contracts entered into, modified, or extended on or after January 1, 2017, would make any provision in a consumer or employment contract that purports to designate the venue in which a controversy arising from the contract may be litigated, or the choice of law to be applied, voidable by the consumer or employee, under specified circumstances. Further, this bill would prohibit a seller or employer from requiring a consumer or employee to agree to such a provision, as specified, and if such a provision is required, it shall be inoperative and California law shall apply in its place. Lastly, this bill would authorize a court to award a plaintiff enforcing his or her rights under this bill attorney's fees, as specified. BACKGROUND As a general matter, arbitrations provide an alternative method of dispute resolution, outside of the courts, wherein a neutral third party, known as the arbitrator, renders a decision after a hearing to which both parties have had an opportunity to be heard. Under California law, there are two distinguishable types of arbitration: judicial arbitration (also known as court-annexed arbitration, governed under Code of Civil Procedure Sections 1141.10 -1141.31) and private arbitrations (also commonly known as "contractual," "voluntary," or "nonjudicial" arbitrations; governed under the California SB 1241 (Wieckowski) Page 2 of ? Arbitration Act, Code of Civil Procedure Section 1280 et seq.). On March 1, 2016, the Senate Judiciary Committee held an informational hearing on the topic of private or contractual arbitration agreements, entitled The Federal Arbitration Act, the U.S. Supreme Court, and the Impact of Mandatory Arbitration on California Consumers and Employees. In that hearing, many issues facing consumers and employees who are subject to arbitration clauses contained in standardized, take-it-or-leave-it, or "adhesive," contracts were brought to light. That hearing also brought to light the various difficulties facing the State in addressing some of the underlying, fundamental harms faced by consumers and employees as a result of federal preemption and U.S. Supreme Court precedent interpreting the Federal Arbitration Act. A package of arbitration bills, of which this bill is one, arose out of the hearing, seeking to address various fairness issues surrounding the rules that govern the conduct and operation of arbitrators and arbitrations in this state. Of particular relevance to this bill are issues of fairness surrounding choice of law and choice of forum clauses as a condition of non-negotiable consumer and employment contracts, and, specifically, the ability of a seller or employer to require a California consumer or employee to litigate or arbitrate their claims arising out of California in another state, or pursuant to another state's laws. Generally speaking, California law does not currently prohibit companies or employers from requiring consumers or employees to agree to a non-California forum or to apply non-California law to resolve their disputes. As a matter of case law, such clauses are valid so long as the California consumer or employee "will not find their substantial legal rights significantly impaired by their enforcement." (America Online, Inc. v. The Superior Court of Alameda County (2001) 90 Cal.App.4th 1, 21, 23.) This bill seeks to ensure that California consumers and employees cannot be forced to litigate or arbitrate their California-based claims outside of California, under out-of-state laws, as a condition of a consumer or employment contract. Specifically, this bill would provide that, in any consumer or employment contract entered into on or after January 1, 2017, a provision that purports to designate the venue in which a controversy arising from the contract may be litigated SB 1241 (Wieckowski) Page 3 of ? or arbitrated, or the choice of law to be applied, is voidable by the consumer or employee, if it: (1) deprives the consumer or employee of the protection of California law with respect to a controversy arising in California; or (2) requires the consumer or employee to litigate outside of California a claim arising in California. This bill would prohibit a seller or employer from requiring a consumer or employee to agree to such a provision as a condition of a consumer or employment contract, and would provide that such a provision is inoperative and California law must be applied in its place. CHANGES TO EXISTING LAW Existing law permits California courts to exercise jurisdiction on any basis not inconsistent with the state or federal Constitutions. (Code Civ. Proc. Sec. 410.10.) A court is also authorized to stay or dismiss most actions in which it finds "that in the interest of substantial justice" the action should be heard in a forum outside of California. (Code Civ. Proc. Sec. 410.30(a).) Existing law codifies the established doctrine that the courts will not enforce an unconscionable contract. Specifically, existing law provides that, if a court finds as a matter of law that a contract or any clause of the contract was unconscionable at the time it was made, the court may refuse to enforce the contract or the unconscionable clause. (Civ. Code Sec. 1670.5.) Existing case law , in which the California Supreme Court struck down a mandatory arbitration agreement in an employment contract as an unconscionable contract of adhesion, holds that "unconscionability has both a 'procedural' and a 'substantive' element, the former focusing on 'oppression' or 'surprise' due to unequal bargaining power, the latter on 'overly harsh' or 'one-sided' results." (Armendariz et al. v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) Existing case law , in which the appellate court refused to enforce a forum selection clause in a consumer contract, holds that forum selection clauses will be enforced only "so long as California consumers will not find their substantial legal rights significantly impaired by their enforcement." "California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state's public policy." (America SB 1241 (Wieckowski) Page 4 of ? Online, Inc. v. The Superior Court of Alameda County (2001) 90 Cal.App.4th 1, 21, 23.) Existing law provides, with respect to a contract between a contractor and a subcontractor for the construction of a public or private work of improvement in this state, that a provision shall be void and unenforceable if it purports to require any dispute between the parties to be litigated, arbitrated, or otherwise determined outside this state or purports to preclude a party from commencing such a proceeding or obtaining a judgment or other resolution in this state or the courts of this state. (Code Civ. Proc. Sec. 410.42.) Existing law provides for a maxim of jurisprudence that "[a]ny one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." (Civ. Code Sec. 3513.) Existing law provides the waiver of certain substantive rights as against public policy, such as a person's rights under the Consumer Legal Remedies Act (Civ. Code Sec. 1751) and a person's rights under state securities laws (Corp. Code Sec. 25701). Thus, those rights are non-waivable. Existing law makes certain other employment contract provisions, such as non-compete clauses, void or voidable as against public policy. (See e.g., Civ. Code Secs. 1670.8, 1751, 1799.207, Bus. & Prof. Sec. 16600; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, Fillpoint, LLC v. Maas, 208 Cal.App.4th 1170, 1182-1183.) Existing law , the Consumer Contract Awareness Act, defines a consumer contract as a writing prepared by a seller to be signed by a consumer which provides for the sale or lease of goods or services that are purchased or leased primarily for personal, family, or household purposes. (Civ. Code Sec. 1799.201.) This bill would add to the Consumer Contract Awareness Act that, notwithstanding any other law, a provision in a consumer contract that purports to designate the venue in which a controversy arising from the consumer contract may be litigated, or the choice of law to be applied, is voidable by the consumer if the provision would either: deprive the consumer of the protection of California law with respect to a controversy arising in California; or SB 1241 (Wieckowski) Page 5 of ? require the consumer to litigate outside of California a claim arising in California. This bill would add to the Labor Code that, notwithstanding any other law, a provision in an employment contract that purports to designate the venue in which a controversy arising from the employment contract may be litigated, or the choice of law to be applied, is voidable by the employee if the provision would either: deprive the employee of the protection of California law with respect to a controversy arising in California; or require the employee to litigate outside of California a claim arising in California. This bill would provide that, for these purposes, litigation includes arbitration. This bill would prohibit a seller or employer from requiring a person to agree to a provision as described above as a condition of entering into a contract regulated by the Consumer Contract Awareness Act or an employment contract. If such a provision is required, the provision would be inoperative and California law would apply in its place. This bill would provide that, in addition to injunctive relief and any other remedies available, a court may award a plaintiff who is enforcing his or her rights under this section reasonable attorney's fees. This bill would provide that these provisions shall apply to a contract entered into, modified, or extended on or after January 1, 2017. COMMENT 1. Stated need for the bill According to the author: Arbitration goes wrong when it is forced - when a company requires a consumer to submit any dispute that may arise to arbitration as a nonnegotiable condition of employment or buying a product or service. Forced arbitration is a private out-of-court process that businesses and employers usually SB 1241 (Wieckowski) Page 6 of ? require as a condition of receiving a good, service, or a job. The California consumer is required to waive her right to sue, to participate in a class action lawsuit, or to appeal. Forced arbitration is mandatory, the arbitrator's decision is binding, and the results are not public. Unfortunately, forced arbitration clauses are everywhere: They're in the fine print of car loans and leases, credit cards, checking accounts, insurance, investing accounts, student loans, and even certain employment and nursing home agreements. (In the credit card market alone, arbitration clauses bind as many as 80 million consumers.) SB 1241 focuses in on two of the worst clauses that can appear in a consumer [or employment] contract: (1) Choice of forum clauses that require a consumer [or employee] to go to an arbitration or to a court in an entirely different state, and; (2) Choice of law clauses that intentionally pick what state's law governs the case - thus deciding what the rules are - to disadvantage the consumer [or employee]. Specifically, SB 1241 states that consumer and employment contracts that require a party to litigate or arbitrate in a different state or require that a different state's law govern the dispute are voidable by the consumer. In support of the bill, the California Employment Lawyers Association writes: Increasingly, employers, particularly out-of-state employers, are imposing choice-of-law and forum selection provisions on their California workers in order to: evade California law, make it more difficult for employees to pursue legitimate claims, and ensure that any disputes are decided in a forum that is most favorable to the employer. [ . . . ] Needless to say, most workers lack the resources to travel across the country-let alone around the world-to pursue an employment claim in another state or country. The problem is particularly acute for lower income workers and disabled workers. Those workers that do have the resources and ability to travel might well find that the protection that they had under California law does not exist, or is not as comprehensive, in the jurisdiction that will be deciding their SB 1241 (Wieckowski) Page 7 of ? dispute. [ . . . ] In [a] recent case, a California employee was fired after speaking to other employees about alleged violations of California's Labor Code and because she refused to sign a new arbitration agreement. Rather than taking her case to court in California, her employer has forced the claim to be arbitrated in New York because of a choice-of-venue provision buried in her new-hire paperwork. In support, the Consumer Attorneys of California adds that: Without any legislation to guide them, California courts have freely enforced these choice of law and choice of forum provisions, sending California workers to Florida, Illinois, New York, Minnesota, and even out of the country, to resolve their claims and other employment disputes. People and small businesses should not be forced to travel outside of California to have their claims heard. Likewise, it is unconscionable to have to waive your rights to have California's laws apply to your claims. 2. California's interest in consumer and employment contracts in California This bill would remove the ability of a seller or employer to require a consumer or employee to sign a choice of forum or the choice of law agreement designating a non-California venue, or non-California law to be applied, if it would: (1) deprive the consumer of the protection of California law with respect to a controversy that arose in California; or (2) require the consumer to litigate or arbitrate outside of California if the claim arose in California. Any such provision would be voidable by the consumer or employee and rendered inoperative, thus requiring California law to be applied. Of particular concern to the proponents of this bill appears to be the use and impact of such choice of law and choice of forum clauses alongside provisions mandating arbitration of all disputes in standardized, contracts of adhesion, or largely non-negotiable contracts where the parties have unequal bargaining power. In support, the Consumer Federation of California writes that "[t]he use of mandatory arbitration clauses in consumer contracts has skyrocketed over the last few years. These clauses are often in adhesion contracts, conditional to receiving a SB 1241 (Wieckowski) Page 8 of ? good, service, or a job, and deny consumers their day in court. Consumers are required to waive their right to sue, to participate in a class action lawsuit, or to appeal. Forced arbitration clauses are particularly harmful when they limit the choice of forum, requiring a consumer to go to an arbitration or to a court in a different state, and when they determine what state's law governs the arbitration. The choice of law is made intentionally by selecting state law advantageous to the company and detrimental to the consumer." The author asserts that California consumers and employees should never be forced to travel to a different state to resolve their disputes, or have the laws of a different state govern their dispute by way of choice of law and choice of forum clauses. As stated by the author, "if you're selling goods or services in California or employing Californians, you should not be able to force all dispute resolution to take place in Florida or Delaware. These clauses have a chilling effect for several reasons. Just the cost of travel alone prevents California consumers who have been harmed by an illegal practice from seeking compensation. This is especially true when the amount in controversy is not very large." Furthermore, the author argues, "[t]he only reason an entity doing business in California through selling a product or service in California or employing a Californian would want the laws of another state to apply is to disadvantage the consumer because that state's consumer protection laws are weaker." California has a history of protecting against potentially one-sided contractual arrangements. The California Supreme Court struck down a mandatory arbitration agreement in an employment contract as an unconscionable contract of adhesion, holding that "unconscionability has both a 'procedural' and a 'substantive' element, the former focusing on 'oppression' or 'surprise' due to unequal bargaining power, the latter on 'overly harsh' or 'one-sided' results." (Armendariz et al. v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) Further, California also has a demonstrated and legitimate interest in protecting its residents from unconscionable contracts that overly burden the resident by forcing him or her to litigate or arbitrate a claim arising in California in a different state, while applying out-of-state law. In America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, a California Court of Appeal addressed forum selection clauses and SB 1241 (Wieckowski) Page 9 of ? held that "[o]ur law favors forum selection agreements only so long as they are procured freely and voluntarily, with the place chosen having some logical nexus to one of the parties or the dispute, and so long as California consumers will not find their substantial legal rights significantly impaired by their enforcement." (Id. at 21.) Accordingly, having sufficiently drawn a nexus between California's desire to protect its citizens and the nature of certain contracts between the parties, this Legislature has at various times approved laws restricting choice of law and forum selection between certain contracting parties in order to protect its residents. (See Comment 3 for more on such existing law.) Surely, this state has a substantial nexus to claims or controversies arising in California between an employer and California employee, or a seller and California consumer, as well as a substantial interest in ensuring California laws govern such claims. Moreover, given that employees may not have the freedom to select their employer with particularity, let alone negotiate the terms of their employment contracts, employers largely have the upper hand when requiring an employee to agree to choice of law, choice of venue, and choice of forum provisions. A similar imbalance of power lies between a consumer and the seller of the goods or services that the consumer needs. As such, choice of law and choice of forum agreements contained in consumer and employment contracts, to a great degree, are arguably not procured "freely and voluntarily." Further, given that the employment dispute between the employer and the California employee arises in California, where the employee performs his or her services, applying California law in these disputes is certainly logical. And where a company sells goods in California to California consumers, using California law in these consumer law disputes is logical as well. Thus, as a matter of public policy, this bill appears to level the playing field between companies and consumers, and employers and employees in many otherwise non-negotiable contracts in a reasonable fashion. Furthermore, as noted by the California Employment Lawyers Association, in support of the bill, this bill also levels the playing field between California and non-California businesses and employers: The current situation clearly benefits out-of-state employers at the expense of California employers. Employers who remain subject to the rigorous requirements of California labor and employment law are at a distinct competitive disadvantage when SB 1241 (Wieckowski) Page 10 of ? an out-of-state employer uses a choice-of-law provision to exempt itself from California's laws governing employment relationships and adopt another State's less protective regime. Correcting this problem therefore benefits California employers as well as employees and contributes to fair competition in California. 3. Freedom of parties to contract Several bills brought in this Legislature over the last 15 years have sought to limit or ban choice of law or choice of forum clauses in various contracts, particularly where an agreement would require the employee to litigate in another state or deprive the employee of substantive rights available in California. Similar to those prior efforts, this bill seeks to prohibit choice of law and choice of forum clauses in consumer and employment agreements if they would require the consumer or employee to litigate or arbitrate in another state or deprive the employee of substantive rights available in California. Such protective statutes have been enacted in other areas, such as in construction cases, and in regulating private child support collections. Specifically, existing law provides with respect to a contract between a contractor and a subcontractor for the construction of a public work of improvement in California that a provision shall be void and unenforceable if it purports to require any dispute between the parties to be litigated, arbitrated, or otherwise determined outside this state, or purports to preclude a party from commencing such a proceeding or obtaining a judgment or other resolution in this state or the courts of this state. (Code Civ. Proc. Sec. 410.42.) In addition, private child support collectors are forbidden to require, as a condition of providing services to an obligee, that the obligee waive any right or procedure provided for in any state law regarding the right to file and pursue a civil action, or that the obligee agree to resolve disputes in a jurisdiction outside of California or to the application of laws other than those of California. Any waiver, including, but not limited to an agreement to arbitrate or regarding choice of forum or choice of law, that is required as a condition of doing business with the private child support collector is presumed involuntary, unconscionable, against public policy, and unenforceable. (Fam. Code Sec. 5614(b)(7).) SB 1241 (Wieckowski) Page 11 of ? Under both the federal and state constitutions, a federal or state law may not unduly impair existing contractual relationships. (U.S. Const. art. I, Sec. 10, Cal. Const. art. I, Sec. 9.) In Energy Reserves Group v. Kansas Power & Light (1983) 459 U.S. 400, the U.S. Supreme Court laid out a three-part test for whether a state law violates the Contract Clause. First, the state regulation must substantially impair a contractual relationship. Second, the state "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." (Id. at 411-13.) Third, the law must be reasonable and appropriate for its intended purpose (this test is similar to the rational basis review). Thus, a state regulation that imposes a substantial impairment on a contractual relationship will be upheld if a significant or legitimate public interest justifies the regulation and if the law adjusts the parties' rights in a reasonable and appropriate way. (Id. at 411-413; Associated Builders & Contractors v. Baca (1991) 769 F. Supp. 1537, 1551 (N.D. Cal.).) A ban on choice of law and choice of forum clauses in employment agreements could arguably pass constitutional muster under the above test only if the ban is imposed as a condition of employment and because it would be aimed at a broad, generalized social problem potentially affecting every California employee, not a private interest matter. (See Allied Structural Steel Co. v. Spannaus (1978) 438 U.S. 234, 261.) Notably, a Louisiana law that imposes an outright ban on such clauses was upheld as constitutional by the Louisiana Supreme Court in Sawicki v. K/S Stavanager Prince and Assurane-Foreninger Skuld (La.2001) 802 So.2d 598. The Louisiana law prohibits choice of forum clauses and choice of law clauses in employment contracts, except where "expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action." (La. Rev. Stat. 23:921(a)(2).) The Louisiana Supreme Court held that the statute did not violate the Contract Clause because it did not impair the contractual relationship between the employer and the employee and that the statute reasonably accomplished a legitimate public purpose. Likewise, this bill would ban such clauses under the same conditions to protect the rights of California workers. In the SB 1241 (Wieckowski) Page 12 of ? context of consumer agreements, which are also covered by this bill, choice of law and forum selection clauses that take Californian consumers out of state to litigate their claims arguably undermines a host of state consumer protection laws which not only seek to protect the public against various business practices, but that contain anti-waiver provisions that seek to prohibit a consumer from being forced to waive their rights under those laws in any contract. Being forced to litigate their claims outside of California or by out-of-state laws would presumably undermine those very anti-waiver provisions. 4. Veto of similar bills The prohibitions of this bill limiting choice of law or choice of forum provisions in employment contracts are similar to three prior bills. First, this bill is similar to the enrolled version of AB 267 (Swanson, 2011). In vetoing AB 267, Governor Brown stated: This measure would prohibit employment contracts that require California employees to agree to the use of legal forums and laws of other states. Current law prohibits California employees from being subjected to laws or forums that substantially diminish their rights under our laws and I have not seen convincing evidence that these protections are insufficient to protect employees in California. Finally, I would note that imposing this burden could deter out of state companies from hiring Californians - something we can ill afford at this time of high unemployment. This bill is similar to the enrolled version of AB 335 (Fuentes, 2009). In vetoing AB 335, Governor Schwarzenegger stated: This bill is similar to AB 1043 (Swanson, 2007), which I also vetoed. Like AB 1043, this bill would discourage out-of-state and multinational employers from hiring California-based workers and potentially contribute toward the growing problem of unemployment. Additionally, the bill is unnecessary because courts are already well equipped to determine when a choice of law or choice of forum provision in a private contract should be enforced in consideration of all applicable SB 1241 (Wieckowski) Page 13 of ? circumstances. Lastly, this bill is substantially similar to the enrolled version of AB 1043 (Swanson, 2007). In vetoing AB 1043, Governor Schwarzenegger stated: This bill appears to create a solution in search of a problem. California law currently ensures that employees can not [sic] be subjected to unconscionable contract provisions that would force them to forego the protections of California law or litigate their claims in an inappropriate out-of-state forum. Moreover, this bill creates unnecessary and unhelpful uncertainties for the employers and employees concerning issues of federal preemption. Lastly, I strongly support the right of parties to freely contract for the terms of their employment relationship. This bill fundamentally conflicts with that policy. In contrast to those bills, this bill would make the choice of law and choice of forum provisions voidable by the employee, and not automatically void and unenforceable. 5. Opposition concerns In opposition, the Civil Justice Association of California (CJAC) writes that similar prohibitions existed in prior bills that were vetoed by Governors Brown and Schwarzenegger. (See Comment 4, above.) "In their veto messages both governors noted that California law already prohibits Californians from being subject to laws or forums that substantially diminish their rights under California law. Governor Brown noted that AB 267 could deter out-of-state employers from hiring Californians." CJAC argues further that this bill is unnecessary: California consumers and employees are already protected from unconscionable contract provisions, including forum selection and choice of law. In America Online, Inc. v. Superior Court, 90 Cal.App.4th 1 (2001), a California appeals court refused to enforce a forum selection clause in a class-action consumer contract dispute, holding that California class members' rights would be substantially diminished if they were required to litigate their claims in Virginia. In Verdugo v. Alliantgroup, L.P., 237 Cal.App.4th 141 (2015), a California appeals court refused to enforce a forum designation clause in an employment dispute, holding that the SB 1241 (Wieckowski) Page 14 of ? employer could not demonstrate that enforcement would not diminish employee's rights if litigated in Texas courts. Judges evaluating these clauses for enforceability should be allowed to balance factors in individual cases to determine if choice of law or forum clauses are valid. Prohibiting these clauses by statute is unnecessary as the law already protects Californians from unconscionable contracts. In response, the author writes that this bill is clearly necessary, as only a few weeks ago, a California employee was forced to arbitrate her wrongful termination claim in New York because of a choice-of-venue provision buried in her new-hire paperwork. In addition to that recent case, the author writes that: [N]umerous courts have enforced choice-of-law and forum selection provisions in employment contracts. Olinick v. BMG Entm't, 138 Cal. App. 4th 1286 (Cal. Ct. App. 2006) (requiring California employee to litigate discrimination claims in New York); Hopkinson v. Lotus Dev. Corp, 1995 U.S. Dist. Lexis 8804 (N.D. Cal. June 21, 1995) (requiring California employees to litigate age discrimination and other claims in Massachusetts); Flake v. Medline Indus., Inc., 882 F. Supp. 947 (E.D. Cal. 1995) (requiring California employee to litigate age discrimination claims in Illinois); Sarmiento v. BMG Entm't, 326 F. Supp. 2d 1108 (C.D. Cal. 2003) (requiring California employee to litigate breach of contract and wage claims in New York). Spradlin v. Lear Siegler Management Services (9th Cir. 1991) 926 F.2d 865, (requiring a California citizen to litigate his age discrimination claims in Saudi Arabia) These cases hold that the burden is on the employee to prove that the provision is unconscionable or unreasonable. As a practical matter, this means that the choice-of- law and forum selection provisions are usually enforced. Support : California Employment Lawyers Association; Consumer Attorneys of California; Consumer Federation Opposition : Civil Justice Association of California SB 1241 (Wieckowski) Page 15 of ? HISTORY Source : Author Related Pending Legislation : SB 1078 (Jackson, 2016) would add specified rules relating to marketing activities of private arbitration companies and relating to the ability of arbitrators to enter into future arrangements with one party to a pending arbitration. This bill would also allow parties to recoup fees where an award has been vacated or the arbitrator has been removed during an arbitration for violations of ethical rules or disclosure requirements. SB 1065 (Monning, 2016) would eliminate the existing law right of appeal when a motion to compel arbitration has been denied, if the case involves a claim under the Elder Abuse and Dependent Adult Civil Protection Act and the senior has received a trial preference under existing law due to age and health. SB 1007 (Wieckowski, 2016) would establish the right of a party to an arbitration to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, at the expense of the party requesting the transcript, except as specified, and would provide that the transcript shall be the official record of the deposition, proceeding, or hearing. The refusal of this right would be a ground for vacatur of the arbitration award. Prior Legislation : AB 267 (Swanson, 2011) See Comment 4. AB 335 (Fuentes, 2009) See Comment 4. AB 1403 (Swanson, 2007) See Comment 4. AB 1740 (Assembly Judiciary Committee, 2005) would have provided that an agreement entered into or renewed on or after January 1, 2006, establishing a forum outside of this state for the hearing of specified matters relating to a California consumer would be contrary to public policy and void and unenforceable. This bill died without a hearing in our Committee. SB 1241 (Wieckowski) Page 16 of ? AB 2331 (Wayne, Ch. 815, Stats. 2002) added anti-waiver provisions to various consumer protection laws. AB 256 (Wayne, 2001) would have required that any action commenced against a resident who is a consumer in this state arising out of a consumer contract or other transaction for the purchase, lease, license, or bailment of goods or services primarily for personal, family, or household purposes, be filed in the county in which the consumer signed the contract, the county in which the consumer resided at the time the transaction was entered into, or the county in which the consumer resides at the time action is filed. That bill was vetoed. **************