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Business Litigator, Mediator
Recent Activity
Relying On Common Law Principles Of Contract Formation, The Court Of Appeal Ducks Deciding Whether Failure To Comply With Statutory Provision Requiring Spanish Translation Of Contract Resulted In Unconscionability. Ordinarily, one who signs a contract without understanding its contents will nevertheless be bound by it, just as one who fails... Continue reading
Fees And Costs Provision In Consumer Arbitration Was Unconscionable Here. This case involves a common scenario in which a business sells a good or service that is financed, the business is unable to fully perform, and the lender seeks to enforce an arbitration provision when it gets sued. Here, the... Continue reading
“Have We Lost A Constitutional Right In The Fine Print?” On the November 12, 2015 edition of Fresh Air, Dave Davies interviews New York Times reporter Jessica Silver-Greenberg, co-author of the New York Times Special Report on arbitration. I have blogged about the series, as well as the retort by... Continue reading
U.S. Chamber Of Commerce Is Not Amused. On November 1 and 2, I reported on the NYT Special Report about arbitration – articles highly critical of the spread of arbitration. While the report is one-sided in its approach, it does serve to highlight the revolution that is quietly occurring in... Continue reading
Keep On Truckin’ . . . In Arbitration. We have posted before about the “Berman hearing”, named after Congressman Howard Berman, and providing workers with a procedure intended to provide “a speedy, informal, and affordable method of resolving wage claims” with the California Labor Commissioner. Under California law, it cannot... Continue reading
Yesterday I reported that the New York Times has kicked off its special report on arbitration with Part I, an article entitled “Arbitration Everywhere, Stacking the Deck of Justice.” The NYT has now moved on with Part II, “Privatizing Justice,” and Part III, “In Religious Arbitration, Scripture Is The Rule... Continue reading
The Article Is Critical of Enforcement Of Individual Arbitration In Situations Where Only A Class Action Can Be Economically Prosecuted. Jessica Silver Greenberg and Robert Gebeloff have authored a special report appearing in the New York Times online edition on October 31 and November 1, 2015, under the title: “Arbitration... Continue reading
A Circuitous Route To Publication. I posted about SingerLewak v. Gantman on July 31, August 31, and September 1, 2015. This is an interesting case discussing the so-called “public policy exception” that will sometimes justify review of an arbitral award by the superior court – though in the end, not... Continue reading
California Law Revision Commission Revisits Mediation Confidentiality At Its October 8, 2015 Meeting. I have previously posted about efforts to permit the introduction of evidence currently protected by mediation confidentiality. See my posts of August 30, 2015, and September 11, 2015. The California Law Revision Commission met on October 8,... Continue reading
ScotusBlog Analyzes Oral Argument Under Caption, “Justices have scorching criticism for California court’s refusal to enforce arbitration agreement, but debate their authority to correct it.” Columbia Law Professor Ronald Mann has authored both an October 2, 2015 preview of arguments in DIRECTV v. Imburgia and an October 7, 2015 analysis... Continue reading
Panel Holds the Federal Arbitration Act Did Not Preempt The California Rule Announced In Iskanian. By a 2-1 majority, a Ninth Circuit panel has reversed a district court’s order that had granted an employer’s motion to compel arbitration of claims and dismissed claims for civil penalties under the Private Attorney... Continue reading
Mediator Jill Switzer Comments On The Recent Proposal Before The California Law Revision Commission To Loosen Mediation Confidentiality Statutes. On August 30, 2015, I posted that on August 7, 2015, the California Law Revision Commission directed staff “to begin the process of preparing a draft of a tentative recommendation that... Continue reading
Party Wishing To Enforce Right To Have Settlement Agreement Interpreted By Arbitrator Ought To Have Sought Enforcement Before Same Issues Were Submitted To Court For Adjudication On The Merits. The underlying dispute in Kurtin v. Elieff, G049556 (4/3 Sept. 2, 2015) (Rylaarsdam, Aronson, Fybel) (unpublished) was a messy partnership buyout... Continue reading
Court of Appeal’s Jurisdiction To Authorize Publication Expired. Just yesterday, in the preceding post, I reported the Court of Appeal, Second District, Division 8, had authorized publication of SingerLewak v. Gantman, a case offering an excellent discussion of the so-called “public policy exception” that, when it is found it exist,... Continue reading
An Arbitrator Implying A Geographic Limitation Under Bus. & Prof. Code Section 16602 Did Not Violate An Important Public Policy, And Thus Did Not Expose The Arbitral Award To Judicial Review. On July 31, 2015, I posted about SingerLewak, LLP v. Gantman, B259722 (2/8 July 29, 2015; pub. Aug. 31),... Continue reading
Proposed New Exception To Mediation Confidentiality Statutes Would Utilize In Camera Screening Process. On August 7, 2015, the California Law Revision Commission directed staff “to begin the process of preparing a draft of a tentative recommendation that would propose an exception to the mediation confidentiality statutes (Evid. Code sections 1115-1128)... Continue reading
Party Seeking Arbitration Only Has Initial Burden Of Establishing Prima Facie Case Of Existence Of Arbitration Agreement. In a dispute concerning student debt, plaintiff student argued defendant loan servicer failed to establish the dispute was encompassed by the arbitration agreement. Reversed: “In denying defendant’s petition to compel arbitration, the trial... Continue reading
Incorporation By Reference Of AAA Rules Is The Key Here. Plaintiffs, who worked as armed security guards, brought an employment class action against their employers Universal Protection Service, LP and Universal Services of America, Inc. (UPS). After the trial court denied UPS’ motion to compel individual arbitration, while staying the... Continue reading
State Law Unconscionability Principles Are Not Preempted By The Federal Arbitration Act – So Long As They Do Not Uniquely Target Arbitration Agreements. Carlson v. Home Team Pest Defense, Inc., A142219 (1/4 Aug. 17, 2015) (Ruvolo, Reardon, Streeter) (certified for publication) affirms an order denying an employer’s motion to compel... Continue reading
Court Distinguishes Imburgia v. DIRECTV, Inc., Case Pending Before SCOTUS. Automobile purchases and leases have generated quite a few disputes about the enforcement of arbitration clauses. Exhibit 1: The Sanchez case decided by the California Supreme Court on August 3, about which I posted on August 4, 2015. We have... Continue reading
Judgment Confirming Arbitration Award And Postjudgment Order Awarding Attorney Fees Are Reversed. One of this blog’s sidebar categories is “Nonsignatories,” because many cases address whether nonsignatories to arbitration agreements can nevertheless be compelled to arbitrate either because they are third-party beneficiaries of the agreement, or because they have a special... Continue reading
Application of Concepcion Is Decisive. At last, the California Supreme Court has decided Sanchez v. Valencia Holding Company, LLC, S199119 (Cal. Sup. Ct. Aug. 3, 2015) (Liu, J., author). The case has been pending since Defendant and Appellant Valencia filed its petition for review on January 4, 2012. The majority... Continue reading
An Uncertain Future In California: The Arbitrability Of Statutory Representative Actions Brought For The Benefit Of The Public. Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, my article “Can Private Attorney General Actions Be Forced Into Arbitration?” is now available... Continue reading
SingerLewak LLP v. Gantman Contains Excellent Discussion Of The “Public Policy Exception” That Sometimes Permits Judicial Review Of An Arbitrator’s Decision – But Not Here. It is well-established that arbitrators do not exceed their powers just because they assign an erroneous reason for their decision. Therefore, the vast majority of... Continue reading
Rule For Arbitration Awards Is Different From Rule For Judgments In North Beach Partners, LLC v. Sollner, A139893 (1/4 July 27, 2015) (Rivera, Ruvolo, Reardon) (unpublished), a hotly contested real estate dispute, the superior court granted a motion to amend a judgment and add additional judgment debtors as alter egos... Continue reading