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Business Litigator, Mediator
Recent Activity
Takeaway: California Law Precludes Employer From Requiring Employee To Individually Arbitrate “Aggrieved Employee” Status While Preserving Right To Judicial Forum For Other Aspects Of Claim. Perez v. U-Haul Co. of California, B262029 (2/7 8/16/16) (Zelon, Segal, Garnett) shows the ingenuity of an employer who tried to escape the reach of... Continue reading
True, Mediation Conditions Precedent To Collecting Attorney’s Fees Are Strictly Interpreted – But Not Here, Where Commonsense Dictated Otherwise. Check out the September 13, 2016 post in California Attorney’s Fees, the blawg my colleague Mike Hensley and I contribute to, about Lamar Central Outdoor, LLC v. Hwang, Case No. B266070... Continue reading
Defendants’ Failure To Disclose Prohibitively Expensive Arbitration Fees To Low Income Plaintiffs Weighed Against Enforcement Of The Arbitration Provision. When 61 “primarily low-income mobilehome owners” sued Wildwood Mobile Home Country Club (“Westmont”), naturally Westmont moved to compel arbitration. After the trial court denied the motion, Westmont appealed. Unsuccessfully. Penilla v.... Continue reading
How Will This Ultimately Play Out? In Mohamed v. Uber Technologies and Gillette v. Uber Technologies, Nos. 15-16178 and 16181 (9th Cir. 9/7/16), cases in which district court judge Edward M. Chen found arbitration clauses between Uber and its drivers to be unenforceable, the 9th Circuit panel has affirmed in... Continue reading
Arbitrators Allowed One Party To Speak And Did Not Allow Other Side Even A Limited Chance To Do The Same Or To Cross-Examine. One of the raps against arbitration is that arbitration proceedings lack due process. In Royal Alliance Associates, Inc. v. Liebhaber, No. B264619 (2/4 8/30/16) (Collins, Epstein, Manella),... Continue reading
Panel Majority Ties Mediation Privilege To Parties’ Expectations At The Time Of The Mediation, Not To Later Time When Federal Claims Were Dismissed. Timing can be everything. Where there are federal question claims and pendent state law claims present, the federal law of privilege applies. Agster v. Maricopa County, 422... Continue reading
Jost On Justice Poses The Question. In his August 28, 2016 post, Prof. Kenneth Jost suggests, as I did in my August 23, 2016 post about Morris v. Ernst & Young, that the split among the circuits concerning the enforceability of employment contract clauses requiring disputes to be resolved through... Continue reading
Sour Wine To Drink? Miners panning gold by Anton Refregier at Rincon Annex Post Office located near the Embarcadero at 101 Spear Street, San Francisco, California. Carol M. Highsmith, photographer. 2012. Library of Congress. California Attorney’s Fees, the blawg that my colleague Mike Hensley and I have contributed to since... Continue reading
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