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Business Litigator, Mediator
Recent Activity
Argument Is Summarized In SCOTUSblog. On February 23, 2017, Professor Ronald Mann of Columbia Law School provided argument analysis in SCOTUSblog of yesterday's oral argument in Kindred Nursing Centers Limited Partnership v. Clark. By the tenor of the argument, which appears to have been hostile to Kentucky's position that the... Continue reading
The Important Distinction Is Whether Fraud In The Inducement Applies To The Contract Or To The Arbitration Clause. Though unpublished, Milder v. Holley, B267974 (2/5 1/31/17) (Kumar, Kriegler, Baker) has facts that neatly clarify an important gateway issue: does a judge or an arbitrator get to decide whether there was... Continue reading
The Arbitration Clause Analyzed By The Court Is Common In Automobile Sales Contracts. The Arbitration Clause analyzed in Raczynski v. Daland Nissan, Inc., et al., A146992 (1/5 2/15/17) (Bruiniers, Jones, Needham) (unpublished), provides that the arbitrator's award "shall be final and binding on all parties, except that in the event... Continue reading
Where Statutory Violations Are Alleged, Presumption Of Arbitrability Applying To Contractual Disputes Arising Out Of A Collective Bargaining Agreement Does Not Apply. Collective bargaining agreements (CBAs) are a different animal requiring close scrutiny when the question of arbitrability arises in an employment dispute. In Vasserman v. Henry Mayo Newhall Memorial... Continue reading
Panel Rejects Employee's Arguments That Six Provisions Are Unconscionable, Requires Severance Of "Judicial Carve-Out" Provision, And Punts On "Reaffirmation Clause" Provision. Poublon v. C.H. Robinson Company, et al., No. 15-55143 (9th Cir. 2/3/17) (Ikuta, Callahan, Bea) is an opinion that employers will likely cite when arguing against employee claims that... Continue reading
Whether Referee Or Trial Court Decided The Case Would Have Made No Difference, Because The Case Was Decided Correctly. It was the last 1 ½ pages of this published 27 page slip opinion that caught our attention, because it referred to appointment of a referee, and reference is one of... Continue reading
Woody Allen Principle: "80% Of Life Is Showing Up." Northeast elevation - Woody Allen Road Bridge, Spanning Oothalooga Creek at County Road 316, Adairsville, Bartow County, Georgia. Library of Congress. In Newman v. The Ramona Terrace Community, LLC, No. E066400 (4/2 2/3/17) (Codrington, Hollenhorst, Slough) (unpublished), the Court holds: "Because... Continue reading
Two Years Later . . . On January 7, 2015, we posted about Montano v. The Wet Seal Retail, Inc., B244107 (2nd Dist. Div. 4 1/13/15) (certified for pub.). This is a Private Attorneys General Act case following the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th... Continue reading
This Is A Railway Labor Act Preemption Case. Alaska Airlines v. Schurke, et al., No. 13-35574 (9th Cir. 1/25/17) is not about the merits of whether a flight attendant gets to use her vacation time to care for her sick child – a Washington state agency had ruled in her... Continue reading
Customer Agreement With Verizon And Samsung Product And Safety & Warranty Agreement In The Box Failed To Bind Plaintiff To Arbitrate. In Norcia v. Samsung Telecommunications America, LLC, et al., No 14-16994 (9th Cir. 10/17/17) (Ikuta, Thomas, Bea), Judge Ikuta provides in depth analysis of whether a 101 page brochure... Continue reading
March 4, 1865 And March 4, 1921. Pres. Abraham Lincoln taking the oath of office at his second inauguration. Library of Congress. VP Calvin Coolidge and Pres. Warren G. Harding. Library of Congress. Continue reading
Ninth Circuit Case of Morris v. Ernst and Young Is One Of The Three Cases. On December 9, 2016, I linked my article on "The Politics of Arbitration" to this blog. In that article, I predicted, "Morris [v. Ernst and Young] could serve as a springboard for sending divergent opinions... Continue reading
A Trap For The Unwary . . . Kum Tat Limited v. Linden Ox Pasture, LLC, No. 14-17472 (9th Cir. 1/13/17) (Hurwitz, Lucero, Graber) presents a trap for the unwary. Plaintiff Kum Tat Limited sued in California state court in connection with its attempted purchase of residential property for approximately... Continue reading
The Setting: Dispute Is More Than Ten Years Old, This Is Second Appeal, And There's Still Plenty Of Fight Left In the Old Boys . . . Early on the Court's opinion oozes frustration: "As much as we are loathe to drag on this protracted litigation any longer, we conclude... Continue reading
Employer Cannot Compel Employee To Arbitrate Individual Aspects Of PAGA Claim While Maintaining Representative Claim In Court. We blogged about Hernandez v. Ross, E064026 (4/2 1/3/17) on December 8, 2016. Hernandez is one more California case holding that a court cannot split a representative PAGA claim into arbitrable and non... Continue reading
Just Because There Is An Arbitration Provision, Don’t Take The Existence Of An Arbitration Agreement For Granted . . . The mere existence of a contractual provision requiring arbitration does not mean that the parties have established the existence of an agreement to arbitrate the claims between the parties. At... Continue reading
Material Amendment To A Footnote? On September 11, 2016, we posted about the Uber Drivers cases, Mohamed v. Uber Technologies, Inc., et al., and Gillette v. Uber Technologies, Inc., Nos. 15-16178 and 15-16181 (9th Cir. 9/7/16). The 9th Circuit opinion penned by Judge Clifton held that the issue of arbitrability... Continue reading
Ordinarily, Denial Of A Motion To Compel Arbitration Is Appealable – But Not Here, And The Court Explains Why . . . Hayward Renaissance Walk Corporation v. Olson Urban Housing, LLC, A148372 (2/1 12/20/16) (Margulies, Humes, Dondero) (unpublished) does something satisfying that we like cases to do: it makes sense... Continue reading
Two Separate Agreements, Rather Than One Fully Integrated Agreement, Governed The Relationship Between The Parties. Pacific Interventionalists, Inc. v. Pedes Orange County, Inc., G052815 (4/3 12/116/16) (O’Leary, Fybel, Ikola) (unpublished) delves into the application of the parol evidence rule to an agreement containing a promise to arbitrate. In order to... Continue reading
The Key: Close Reading Of Provision Providing For Arbitration If Reference Became “Legally Unavailable.” The short but interesting opinion in Freeman v. Froehlich Signature Homes, Inc., F073374 (5th Dist. 12/15/16) (Levy, Gomes, Kane) (unpublished), merits close reading, because it reads like a finely-worded exam question. In a construction defect lawsuit,... Continue reading
Limitations On Discovery Did Not Make Arbitration Unconscionable, Because The Limitations Applied Equally. A vintage downtown beauty parlor, part of the Ackley Heritage Center that also includes an old-time soda fountain as well as prairie houses and farm buildings on the outskirts of town in Ackley, Iowa. 2016. Carol M.... Continue reading
How Liberal And Conservative Justices On The US Supreme Court Have Parted Ways Over Arbitration Cases. My article entitled, "The Politics of Arbitration", appears in California Litigation, The Journal of the Litigation Section, State Bar of California, Vol. 29, No. 3, 2016. As my article explains, arbitration has become one... Continue reading
In The Fifth Circuit, D.R. Horton Inc. v. NLRB, 737 F.3d 344, Is Dispositive. In an unpublished opinion, Citigroup Technology, et al. v. NLRB, 15-60856 (5th Cir. 12/8/16) (per curiam), the Fifth Circuit grants Citigroup’s Petition for Review, and reverses the NLRB’s decision adverse to Citigroup, which seeks to enforce... Continue reading
Hernandez v. Ross Stores Lines Up With Other California Cases Refusing To Split PAGA Claims Into Arbitrable And Non-Arbitrable Parts. In Hernandez v. Ross Stores, Inc., No. E064026 (4/2 12/7/16) (Miller, Hollenhorst, Slough) (unpublished), the Court of Appeal upholds the trial court’s denial of an employer’s motion to compel arbitration... Continue reading