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Business Litigator, Mediator
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Consumers With Neanderthal DNA And A Bone To Pick With 23andMe Will Need To Bring Their Clubs To Arbitration. The Neanderthal man, member of the hunting race inhabiting central France in Mousterian times. Philip Brigandi, photographer. 1924. Library of Congress. Tompkins v. 23andMe, Inc., No 14-16405 (9th Cir. Aug. 23,... Continue reading
Language In The Employee Handbook Undercut The Existence Of An Agreement To Arbitrate. When January Esparza sued her employer for sexual harassment and related causes of action, the employer petitioned to compel arbitration, based on the fact that Esparza had acknowledged receipt of an employee handbook, and the handbook mentioned... Continue reading
Judge Ikuta Dissents: “This decision is breathtaking in its scope and in its error . . . “ The issue decided in Morris v. Ernst & Young, No. 13-16599 (9th Cir. 8/22/16) is clearly framed by the majority and dissenting opinions, and almost certainly headed for Supreme Court review. In... Continue reading
The next three cases show that, notwithstanding the trend to uphold agreements to arbitrate, there are still plenty of situations in which our California Courts of Appeal will agree that arbitration should be denied or stayed, and allow litigation to go forward. Tran v. Integra LifeSciences Corporation, No. G051620 (4th... Continue reading
The Federal Arbitration Act and the California Arbitration Act Diverge On Whether Interim Arbitration Awards Can Be Vacated. In the aptonymically-named case, Judge v. Superior Court, No. B267694 (2/7 8/15/16) (unpublished), the Court of Appeal considered whether the trial judge had property vacated an arbitrator’s ruling on clause construction requiring... Continue reading
Court Of Appeal Rejects Waiver, Estoppel And Forfeiture Arguments Made By Lessor Who Failed To Timely Exercise Right To “Baseball Arbitration” In Rental Dispute. Miss Myrtle Rowe holding a baseball bat. March 14, 2010. Library of Congress. “Baseball arbitration” takes its name from salary arbitration in Major League Baseball, in... Continue reading
Enforceability Of Arbitration Provisions Is Uncertain, Threatening To Upset The Settlement Applecart. Joel Rosenblatt, reporting for Bloomberg on August 18, 2016, explains why San Francisco District Court Judge Edward Chen’s rejection of a class-settlement between Uber and its drivers may now give Uber the upper hand: the Ninth Circuit is... Continue reading
Policy Of Encouraging Parties To Resolve Disputes Without Resort To Litigation Supports Liberal Construction Of Statutory Language. “This case presents the question of whether the Davis-Stirling Act, and particularly the fee-shifting provision of section 5975, subdivision (c), applies to an action to enforce a settlement agreement arising out of a... Continue reading
The Evidence Supports Mediation’s Selling Points. The Maryland Judiciary has commissioned research to be conducted by independent researchers on the efficacy of mediation with small claims-type cases. The research claims to be “the only research in the country that compares the attitudes and changes in attitudes of participants who went... Continue reading
Can Kentucky Require That Nursing Home Resident’s Power of Attorney Reference Arbitration In Order To Effectively Bind Attorneys-In-Fact To Arbitrate Wrongful Death Cases? – Or Does Federal Arbitration Act Preempt State Requirement? Above: Nurse training. Nov. 1942. Fritz Henle, photographer. Library of Congress. At the beginning of the week, we... Continue reading
SCOTUSBlog’s “Petition of the Day” Presents Arbitration Issues. “The Jolly Smoker.” Currier & Ives. c1880. Library of Congress. On July 29, 2016, Kate Howard reported on the “Petition of the Day” in R.J. Reynolds Co. v. Maryland, 15-1537, presenting the issues: “(1) Whether, when the Federal Arbitration Act (‘FAA’) governs... Continue reading
Trial Court Is Reversed. Above: Judge James Wickersham in council with Indian chiefs. Fairbanks, Alaska. c1900-1907. Library of Congress. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its [sovereign] immunity.” Kiowa Tribe v.... Continue reading
In Re Swift Transportation, No. 15-70592 (9th Cir. 7/26/16): No To Mandamus. In a prior appeal, the 9th Circuit held that the district court, rather than the arbitrator, must decide whether the dispute was exempt from arbitration under 9 U.S.C., section 1. That section of the Federal Arbitration Act provides... Continue reading
Dissent Argues That Classwide Arbitrability Is A Gateway Question The Court Should Get To Decide. The courts have treated gateway arbitrability issues concerning the existence of an arbitration agreement and the scope of the agreement as “gateway” issues for the courts to decide, whereas so-called procedural issues are to be... Continue reading
. Panel Holds That Lengthy Amount of Time Litigating In Federal Court “Will Almost Inevitably” Cause Parties To Expend More Time, Money, And Effort Than Had They Proceeded Directly To Arbitration. In Martin v. Yasuda, No. 15-55696 (9th Cir. 7/21/16) (Reinhardt, Wardlaw, Bennet), defendants, a cosmetology school and its principal,... Continue reading
Roger Ailes/Gretchen Carlson Dispute May End Up In Arbitration. Empirical studies support the perceptions of employees that they do better in court than in arbitration. See, for example, the study by Alexander Colvin of Cornell: “An Empirical Study of Employment Arbitration: Case Outcomes and Processes.” Roger Ailes’ defense team knows... Continue reading
Third-Party Non-Signatory Owed Duties Under Labor Code To Plaintiff, Independent Of Plaintiff’s Contract. Zepeda v. Paramount Citrus Packing Company LLC, F071593 (5th Dist. 7/14/16) (Pena, Levy, Smith) (unpublished) distinguishes two situations: (1) a plaintiff whose relationship with a third-party non-signatory merely presumes the existence of a contract; and (2) a... Continue reading
If You Like This Blawg, Please Put In A Good Word For Us With The ABA’s Annual Search For Best Legal Blawgs. Dear Readers: Each year the ABA publishes an annual list of best legal blogs. If you read this blawg and think others should know about it, please let... Continue reading
The Subjects Are Appellate Mediation And Mediating Employment Disputes With Small Business Owners. The July 2016 edition of Orange County Lawyer includes two worthwhile articles about mediation. Rethinking the Impossible: Appellate Mediation. By the time a case is on appeal, many attorneys and their clients view a case as far... Continue reading
Case Held That Arbitration Agreement Between Indiana Based Distance-Learning Partnership And California Licensed Vocational Nurses Was Unconscionable. We can report that on July 8, 2016, Magno v. The College Network, Inc., D067687 (4/1 6/14/16) (McConnell, Nares, O’Rourke), a case we posted about on June 22, 2016, was ordered for publication.... Continue reading
Interview In Orange County Lawyer Is Summarized Today In California Attorney’s Fees Blawg. My colleague Mike Hensley and I publish a blawg about California Attorney’s Fees. A post today (July 10, 2016) in that blawg summarizes highlights of an interview appearing in the July 2016 edition of the Orange County... Continue reading
Notwithstanding the trend in SCOTUS to uphold arbitration agreements, including waiver of class arbitration, our next two unpublished cases show that the California courts look closely at arbitration agreements, sometimes enforcing and sometimes not enforcing arbitration agreements. On the same day, one California Court of Appeal reversed an order denying... Continue reading
The Three Immutable Rules Of Appellate Practice. “When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and... Continue reading
Presiding Justice Turner Respectfully Dissents. The Fifth Circuit, Division Two, holds that because a law firm’s cause of action to compel arbitration with its client “admitted the existence of a binding agreement to arbitrate the fee dispute, the trial court’s jurisdiction over the merits of plaintiff’s claims was initially limited... Continue reading
For Preemption Purposes, “Involving Commerce” In The FAA Is Broader Than “In Commerce”, Making It Easy To Find Preemption. Physicians don’t like to defend medical malpractice cases in front of juries, and Scott v. Yoho, B265641 (2/5 6/22/16) (Turner, Kriegler, Kumar) will make it easier for them to arbitrate malpractice... Continue reading