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Business Litigator, Mediator
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GRRRRRRRRR . . . . If you are reading this post, we thank you for your loyalty! Since last week, our internet platform, the usually very reliable Typepad, owned by SAY Media, has been subjected to a “distributed denial-of-service attack.” A DDOS attack is intended to make a network resource... Continue reading
Sixth District Does Agree That Federal Arbitration Act Preempts California Consumers Legal Remedies Act, So Class Action Waiver In Arbitration Clause Is Enforceable Jalopy that has seen better days. Carol M. Highsmith, photographer. Library of Congress. An arbitration clause that is “permeated with unconscionability” need not be enforced. Here, the... Continue reading
Simple Failure Of Proof Dictated The Outcome Generally, a nonsignatory to an arbitration provision cannot compel arbitration. However, under certain circumstances a nonsignatory may invoke or be bound by an arbitration provision: “‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party... Continue reading
Once Again, Fourth Appellate District Demonstrates That Often There’s More Than One Way To Skin A Cat Where Arbitration Deadlines Are Involved Cats. 1927. Library of Congress. On April 4, 2014, we posted about the way a plaintiff found to get around a deadline in arbitration: after the time ran... Continue reading
Arbitrators Acted Within Their Powers, So It Didn’t Change Results Even If They Erred In the underlying dispute, Plaintiffs obtained a substantial award of $150,000 compensatory and $302,784 in punitive damages, blown out when the Court of Appeal ruled that the dispute, related to lease provisions, was subject to arbitration.... Continue reading
Sticking To Its Contract Interpretation Guns, Second District, Division One, Shoots Down Federal Decisions The Court of Appeal has upheld a trial court order denying a motion to dismiss or stay class action litigation and to compel arbitration, basing its conclusion on principles of contract interpretation. Imburgia v. DIRECTV, Inc.,... Continue reading
Plaintiff Finds Way Around JAMS Deadline The next case illustrates the fundamental point that an arbitration award is not the same as a judgment, and that even after the time has expired under the governing arbitration rules to amend the award, it may still be possible to amend the judgment... Continue reading
Court, Rather Than FINRA, Gets To Determine Arbitrability Of Dispute Reno, Nevada, issued $211M in complex securities, known as auction rate securities (ARS). After the market for ARS collapsed in 2008, Reno sought FINRA arbitration with Goldman, Reno’s underwriter and broker-dealer. Reno’s theory was that if it had known that... Continue reading
Closed System Of Business Arbitration Overseen By Judges Collides With First Amendment Right Of Access Möbius Strip. Wikimedia Commons. Author: David Benbennick. GNU Free Documentation License, v. 1.2. On February 26, 2014, I posted the Delaware Chancery Court had petitioned SCOTUS to allow the Chancery Court to oversee private arbitrations.... Continue reading
Failure Of Contractual Dispute Resolution Procedures In Contract To Track Protections In The Right To Repair Act Did Not Make The Provisions Unconscionable The Right To Repair Act, Civ. Code sections 895 et seq., (Act) require a homeowner to provide a builder with notice of defects and an opportunity to... Continue reading
Ethics Standards 2, 3, 7, 8, 12, 16 and 17 are amended, effective July 1, 2014 Matthew Bender’s Rules of Court Special Update (December 2013) explains that Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Standards 2, 3, 7, 8, 12, 16, and 17 are: “amended to: (1) codify the... Continue reading
Court Addresses Unanswered Question As To Whether Stay Order Might Be Deemed “Final” Under “Collateral Order” Doctrine . . . No, Is The Answer A Ninth Circuit panel has held that 9 U.S.C. section 16, the section of the Federal Arbitration Act dealing with appeals, bars appeals from a district... Continue reading
Second District, Division 2 Opinion Reversing Trial Court’s Order Denying CarMax’s Motion To Compel Arbitration Is Now Certified For Publication On February 27, 2014, I posted about Casas v. CarMax Auto Superstores California LLC, Case No. B246392 (2nd Dist. Div. 2 Feb. 26, 2014) (Johnson, Chaney, Miller). At that time,... Continue reading
Alleged Juvenile Taxidermy Thieves Are Spared A Criminal Record, Thanks To Mediation Occupational portrait of taxidermist Martha A. Maxwell with animal specimens, palette, and rifle. October 27, 1876. Library of Congress. When I saw the following headline from the March 12, 2014 edition of the Spokesman-Review in Spokane, Washington, I... Continue reading
Court Acknowledges That Private Attorney General Laws “May Be Severely Undercut By Application Of The FAA” On March 12, at the end of my previous post, I commented “we are still in a somewhat fuzzy area regarding FAA preemption of California statutory rights to file a court action – especially... Continue reading
And Employer Failed To Sustain Burden Of Proving That California Statutory Right Of Employee To Avoid Arbitration Of Unpaid Wages Claim Was Preempted By Federal Arbitration Act Francis Capital Management LLC (FCM) appealed from an order denying its motion to compel Lane, a former employee, to arbitrate all his employment... Continue reading
Court Would Not Compel Arbitration Here Where The Beneficiary Had Not Sought The Benefits Of The Trust Instrument, But Rather Challenged Its Validity Pamela McArthur v. Kristi McArthur, A137133 (1st Dist. Div. 5 March 11, 2014) (Bruiniers, Jones, Needham) is a case arising out of an inharmonious “sister act.” The... Continue reading
Case Has Nice Discussion Of Those Elusive Little Differences Between CCP 1008(a) and (b). In ongoing litigation against Ralphs Grocer Co. and The Kroger Co. for Labor Code violations (defendants), the trial court denied defendants’ renewed petition to compel arbitration filed pursuant to Cal. Code of Civ. Proc. section 1008(b).... Continue reading
Majority Opinion Distinguishes Between Who Decides Arbitrability Of Claims And Who Decides Claims-Processing Requirements On February 26, 2014, I posted that it was time to watch for a decision in BG Group, PLC v. Republic of Argentina,__ S.Ct. __ , 2014 WL 838424. The case was decided on March 5,... Continue reading
Contract Claims For Breach Of Settlement Agreement Are Not Subject To Anti-SLAPP Motion, But Fraud Claims Based On Oral Representations Are Subject To Anti-SLAPP Motion At issue in Praetorian Ins. Co. v. The Dunnon Law Firm, F066590 (5th Dist. March 3, 2014) (Hill, Gomes, Pena) (unpublished) was whether prelitigation settlement... Continue reading
Trial Court’s Finding of Unconscionability Was Rejected On February 27, 2014, I blogged about Casas v. CarMax Auto Superstores California LLC, Case No. B246392 (2nd Dist. Div. 2 Feb. 26, 2014) (Johnson, Chaney, Miller) (unpublished), a case in which the California Court of Appeal overturned the trial court’s denial of... Continue reading
And So The Court Ducks Having To Decide A “Close” Question Our next case involves a dispute between minority and majority shareholders, and how to value the minority shares for purposes of a buyout by the majority. Minority shareholders argued that the arbitrator should have valued the shares under Operation... Continue reading
“Yellow Flags” In Arbitration Clause Functioned As Friendly Warnings, And Did Not Make Clause Unconscionable Plaintiff/Respondent Boese, pursuant to a subscription agreement, invested several hundred thousand dollars with Couch Oil & Gas, Inc., and sued for securities violations. After the trial court denied Couch Oil’s petition to compel arbitration on... Continue reading
Okay, so we don’t really know if the following involves mediation, but it was too good a news tidbit to pass up. As reported in the Miami Herald, and Slate, Dana Snay, a Miami teenager, torpedoed dad’s age-discrimination settlement with his employer, Gulliver Preparatory School, by crowing on Facebook: “Mama... Continue reading
Defendants Simply Could Not Overcome Substantial Evidence Standard After their 52-year-old sibling died following bariatric surgery, plaintiffs sued surgery center defendants for wrongful death. No, surgery center defendants did not immediately move to compel arbitration. Instead, they demurred, they moved to change venue, they propounded discovery that plaintiffs answered, and... Continue reading