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Business Litigator, Mediator
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1991 Amendment To Title VII Facilitates Waiver Of Statutory Remedies In Favor Of Arbitration “Before 1991, ‘Title VII had been interpreted to prohibit any waiver of its statutory remedies in favor of arbitration. Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1304 (9th Cir. 1994). But Congress reversed... Continue reading
From Queen Padmé Amidala To Ruth Bader Ginsburg . . . Every now and then we get the irresistible urge to blog about something that has nothing whatsoever to do with mediation and arbitration. Today, the “off topic” item comes from Amy Howe’s Monday round up on SCOTUSblog, reporting Natalie... Continue reading
Arbitration Provision Clearly Applied To Litigation, But Not To Earlier Transactional Work. Nordman Cormany Hair & Compton, formerly in business for 75 years in Ventura County, appealed an order denying its petition to compel arbitration of a legal malpractice lawsuit. Aggeler v. Nordman Cormany Hair & Compton, B253566 (2/6 April... Continue reading
But Court Of Appeal Does Reject Arguments That Nonsignatories Lacked Standing And That They Waived Right To Compel Arbitration – Before Addressing “Crucial Issue Of Scope In Williams v. Digius, et al., D064183 (4/1 April 24, 2015) (McDonald, McConnell, Haller) (unpublished), the Court of Appeal agreed with appellants, who had... Continue reading
Court Shows No Sympathy For Circumstance Of Defendant/Appellant Whose Party Arbitrator Died. Here, the arbitration panel proceeded with arbitration after the death of defendant/appellant Mitchell’s party arbitrator, refusing to continue the hearing to permit Mitchell to select another party arbitrator. That sounds pretty harsh, but read on: “As troublesome as... Continue reading
Daily Journal Publishes My April 17, 2015 Article On The Perils Of Blogging Published by The Daily Journal on April 17, 2015, my article on the legal perils of blogging will interest those of you who blog, or who are considering blogging. With the permission of the Daily Journal, I... Continue reading
Scope Of Arbitration Provision Was Broad And Unconscionability Was Lacking. This case will be of interest to football fans, and maybe even to lawyers. Hanson v. Cable, A138208 (1st Dist. Div. 3 April 15, 2015) (Jenkins, McGuiness, Pollak) (unpublished). Plaintiff/appellant Randy Hanson sued The Oakland Raiders and its former head... Continue reading
And Application To Compel Arbitration Remains “Undetermined” As Long As Dissatisfied Party Is Pursuing Appellate Review. The Fourth District, Division 2 made short shrift of this case, issuing a peremptory writ of mandate directing the Superior Court of Riverside County to vacate its order denying petitioner Carmax’s motion to stay... Continue reading
Automobile Trade-In Goes Sideways. Above: Old car and truck outside the “Vehicles-You-Deserve” Used Car Dealership in Mesquite, Texas. Photographer: Carol M. Highsmith. 2014. Library of Congress. At first glance, this seems like a fairly common scenario. A daughter trades in her father’s used car for a new one, and payments... Continue reading
“Manifest Disregard Of The Law” Federal Standard For Vacating Award Worked To Employee’s Advantage Here. Our next case involves arbitration issues addressed in three forums: a Labor Management Committee, state courts, and federal district court. Plaintiff/Petitioner Wawock petitioned for a writ of mandate, seeking an order directing the superior court... Continue reading
Failure To Establish Existence Of Actual Agreements To Arbitrate With Any Class Members Dooms Effort To Compel Arbitration. How should one move to compel arbitration with members of a potential class who are parties to arbitration agreements giving them the opportunity to opt out of arbitration? Apparently, not the way... Continue reading
Article By Mediator/Arbitrator Paul Dubow Anticipates Arbitration Issues Arising From California AB 2617 And Proposes Solutions. Paul J. Dubow’s article, “ADR Update: Dealing with AB 2617”, appearing in California Litigation, volume 28, No. 1, 2015, anticipates FAA preemption issues arising from AB 2617, passed by the California Legislature in 2014,... Continue reading
Fourth District, Division Three Ruled Earlier In Citibank v. McGill That “Broughton-Cruz” Rule Fell Prey To Federal Arbitration Act Preemption. Fallen Prey. Circa 1934-39. Library of Congress. Under California’s “Broughton-Cruz” rule, arbitration provisions are unenforceable as against public policy if they require arbitration of Unfair Competition Law, False Advertising Law,... Continue reading
Easter Puck. Louis M. Glackens, artist. 1901. Library of Congress. Continue reading
Mediator Gallup Walloped For Failure To Exhaust Administrative Remedies. Family services mediator Emily Gallup complained to her supervisor and other court management about “insufficient time for mediation appointments, inadequate review of records and gathering of facts, failure to consider criminal histories, failure to advocate for the best interests of the... Continue reading
Deadlines: Lombard Knight v. Rainstorm Pictures, Inc., B253246 (2/1 March 25, 2015). In this case involving agreements to finance the production of motion pictures, Plaintiff sought to “confirm” a multi-million dollar arbitration award, while also asking to dismiss individuals, on the grounds that they had not been properly served, and... Continue reading
Amis v. Greenberg Traurig LLP Acknowledges Supreme Court’s “Near Categorical Prohibition Against Judicially Crafted Exceptions To The Mediation Confidentiality Statutes” Amis v. Greenberg Traurig LLP, No. B248447 (2/3 March 18, 2015) (Kitching, Aldrich, Lavin) (published) holds “a malpractice plaintiff cannot circumvent mediation confidentiality by advancing inferences about his former attorney’s... Continue reading
Also Rejected: Contentions The Agreement Was Unconscionable. The Court of Appeal affirmed the judgment against an employee, including rulings that her claims were subject to arbitration, in Serafin v. Balco Properties Ltd., LLC, Case No. A141358 (1/4 March 16, 2015) (Ruvolo, Reardon, Rivera). COMMENT: The Court’s analysis of appellant’s arguments... Continue reading
Placement and Prominence Requirements Are Key To Implementing Statutory Disclosure And Knowing Waiver Objectives In Anna-Becky Redlich v. Reliance Management Group, Inc., Case No. A140313 (1/2 March 11, 2015) (Banke, Margulies, Dondero) (unpublished), the Court of Appeal agreed with the trial court that arbitration provisions between plaintiff homeowner, and defendants... Continue reading
Severability: General Swallow all-o feasting on a French Fricassee!! William Holland, publisher. May 1799. Library of Congress. Success with Severability: Trabert v. Consumer Portfolio Services. In Trabert v. Consumer Portfolio Services, Inc., Case No. D065556 (4/1 March 3, 2015) (Haller, Aaron, Irion) (published), the Court of Appeal ordered the trial... Continue reading
Agreement to AAA’s Employment Rules Necessarily Includes Agreement To AAA Class Action Rules. On February 28, 2015, I posted about an unpublished case holding that a reference to AAA Commercial Rule R-7 ambiguously delegates power to the arbitrator, because it gives the power to rule to the arbitrator, without saying... Continue reading
AAA Delegation Rule Did Not Preclude Trial Court From Ruling On Unconscionability, But Trial Court Is Reversed, Because The Arbitration Agreement Is Not Unconscionable. After her criminal law professor allegedly said, “"Many women in the field look like dykes, just like you, Anna," Anna Eakins sued Corinthian Colleges, its college... Continue reading
Contention That There Was Error In Confirming The Award Was Not Before The Court. To quote the late Steve “The Crocodile Hunter” Irwin, “Crikey!”. On appeal, defendant Porter argued that the arbitrator exceeded his authority, as a result of which confirmation of the arbitration award was error, citing Cal. Code... Continue reading
Arbitration Clause In Operating Agreement Did Not Cover Statutory Request To Copy And Inspect In Sachs v. GP/T Holdings, LLC et al., B254289 (2/5 Feb. 20, 2015) (Turner, Krieger, Goodman) (unpublished) plaintiff, alleging rights to copy and inspect documents under the Corporations Code, petitioned to compel defendants to produce documents... Continue reading
Split Between State And Federal Blanket Enforcement Of Arbitration Agreements Far From Resolved The February 19, 2015 issue of the Los Angeles Daily Journal includes an article by John Roemer entitled “9th Circuit to test arbitration ruling.” This “test” concerns the California Supreme Court’s holding in Iskanian v. CLS Transportation... Continue reading