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Business Litigator, Mediator
Recent Activity
Rule Would Not Apply To Consumer Sectors Outside Bailiwick Of Consumer Financial Protection Bureau Jessica Silver-Greenberg and Michael Corkery, who have reported recently in the NYT about how arbitration clauses are spreading throughout consumer contracts, now report in the May 5, 2016 online edition of the NYT, that the Consumer... Continue reading
The Committee on Mandatory Fee Arbitration of the State Bar of California has two new Advisories on Mandatory Fee Arbitration (MFA) brought under the Business & Professions Code. Advisory 2016-01, replacing Advisory 2011-02, is about the application of the Statute of Limitations for MFAs. Advisory No. 2016-02, replacing Advisory 2003-01,... Continue reading
San Francisco-Based Mediator And Arbitrator Paul Dubow Has Reported On 18 California And Ninth Circuit Cases Related To ADR. In the 2015 Edition of the California Litigation Review, published by the Litigation Section of the State Bar of California, Paul Dubow has reported on “interesting and significant opinions relating to... Continue reading
In a March 29, 2016 post, Debra Cassens Weiss, writing for the ABA Journal, quotes the esteemed appellate judge Richard Posner: “The first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by... Continue reading
Dissent By Justice Rubin Emphasizes That Disclosure Rules Must Be Broader Than Disqualification Rules I have a sidebar category for “disclosures.” Perhaps I should add one for “disqualification”, because as the lengthy dissent of Justice Rubin explains in Safarian, Choi & Bolstad, LLP v. Minassian, No. B262526 (2/8 April 7,... Continue reading
The Exception To Arbitration Simply Restates Existing Law. The California Supreme Court has ruled that an employment agreement providing for arbitration of disputes, but authorizing the parties to seek preliminary injunctive relief in the superior court, does not make the agreement one-sided and substantively unconscionable, even if employers are more... Continue reading
Arbitral Award Was Properly Corrected To Take Into Account That Labor Code Section 1194 Is A One-Way Fee Shifting Award. California Attorney’s Fees posts today on Ling v. P.F. Chang’s China Bistro, Inc., Case No. H039367 (6th Dist. Mar. 25, 2016) (published), an employment law case in which the Court... Continue reading
Court Of Appeal Advises Online MerchantsTo Include Conspicuous Textual Notice With Terms Of Use. Consumers may be bound by arbitration provisions in internet “clickwrap” or “browsewrap” agreements – except when they are not – as was the case in Long v. Provide Commerce, Inc., B257910 (2/3 March 17, 2016) (Jones,... Continue reading
. . . In Which We Inaugurate A New Sidebar Category (Foreign Arbitration) And Petitioners Who Successfully Compelled Arbitration In District Court Lawsuit Concerning Coffee Franchise Dispute Get Roasted On Appeal. Our next case involves a dispute between an Italian corporation seeking to open a coffee franchise in the United... Continue reading
Federal Arbitration Act Did Not Apply Here. Applying a “sliding scale” analysis, the Court of Appeal found that a “moderate level” of procedural and substantive unconscionability required affirming the trial judge’s order denying defendant employer’s motion to compel arbitration. Carbajal v. CWPSC, Inc., G050438 (4/3 Feb. 26, 2016) (Aronson, Bedsworth,... Continue reading
A Different Story If Order Lifting Stay Had Been Accompanied By Appealable Order Or Judgment The scenario in our next case arises from a circumstance that is not so rare: one of the parties to arbitration refuses to pay the costs of arbitration. That can lead to the end of... Continue reading
When Court Dispute Is Bifurcated By Arbitration Agreement, Pay Careful Attention To Scope Of Arbitration Agreement. . . Vlahopouliotis v. Vallarta Properties, LLC, Case No. G069832 (5th Dist. Feb. 1, 2016) (unpublished), presents an interesting scenario: Plaintiff and Defendant, owners of different parcels in a shopping center, ended up in... Continue reading
When Court Dispute Is Bifurcated By Arbitration Agreement, Pay Careful Attention To Scope Of Arbitration Agreement. . . Vlahopouliotis v. Vallarta Properties, LLC, Case No. G069832 (5th Dist. Feb. 1, 2016) (unpublished), presents an interesting scenario: Plaintiff and Defendant, owners of different parcels in a shopping center, ended up in... Continue reading
Also, Elder Abuse Claim Does Not Need To Be Arbitrated, Because That Could Lead To Conflicting Rulings. Nursing homes and assisted living facilities commonly enter into arbitration agreements with their residents. Suits by heirs or personal representatives for claims of wrongful death and elder abuse have spawned litigation concerning the... Continue reading
Under California Law, Where Party Challenges An Entire Contract As Illegal Or In Violation Of Public Policy, The Question Of Enforceability Is For The Court To Decide. A substantial fee dispute between Sheppard, Mullin, Richter & Hampton, LLP and its client J-M Manufacturing Co., Inc., resulted in an arbitrator’s award... Continue reading
DLA Piper Rudnick Gray Cary US LLP Had Standing To Enforce Arbitration Agreement. One of our more prolific sidebar categories is “Nonsignatories.” Quite a few disputes have been spawned when a nonsignatory to an arbitration agreement seeks to enforce it, under various theories that include incorporation by reference, assumption, agency,... Continue reading
His Opinion Analysis Is Titled, “Justices rebuke California courts (again) for refusal to enforce arbitration agreement” -- And That About Says It All. On December 14, 2015, the United States Supreme Court decided DirecTV v. Imburgia, The SCOTUS syllabus states the holding: “Because the California Court of Appeal’s interpretation is... Continue reading
Ninth Circuit Panel Blames Employer For Not Making Good Faith Effort To Address Merits Of Dispute. SEIU United Health Care Workers-West v. Los Robles Regional Medical Center, No. 13-55672 (9th Cir. Dec. 3, 2015) (Pregerson, Parker, Nguyen) holds “that it is a breach of the duty of good faith performance... Continue reading
Relying On Common Law Principles Of Contract Formation, The Court Of Appeal Ducks Deciding Whether Failure To Comply With Statutory Provision Requiring Spanish Translation Of Contract Resulted In Unconscionability. Ordinarily, one who signs a contract without understanding its contents will nevertheless be bound by it, just as one who fails... Continue reading
Fees And Costs Provision In Consumer Arbitration Was Unconscionable Here. This case involves a common scenario in which a business sells a good or service that is financed, the business is unable to fully perform, and the lender seeks to enforce an arbitration provision when it gets sued. Here, the... Continue reading
“Have We Lost A Constitutional Right In The Fine Print?” On the November 12, 2015 edition of Fresh Air, Dave Davies interviews New York Times reporter Jessica Silver-Greenberg, co-author of the New York Times Special Report on arbitration. I have blogged about the series, as well as the retort by... Continue reading
U.S. Chamber Of Commerce Is Not Amused. On November 1 and 2, I reported on the NYT Special Report about arbitration – articles highly critical of the spread of arbitration. While the report is one-sided in its approach, it does serve to highlight the revolution that is quietly occurring in... Continue reading
Keep On Truckin’ . . . In Arbitration. We have posted before about the “Berman hearing”, named after Congressman Howard Berman, and providing workers with a procedure intended to provide “a speedy, informal, and affordable method of resolving wage claims” with the California Labor Commissioner. Under California law, it cannot... Continue reading
Yesterday I reported that the New York Times has kicked off its special report on arbitration with Part I, an article entitled “Arbitration Everywhere, Stacking the Deck of Justice.” The NYT has now moved on with Part II, “Privatizing Justice,” and Part III, “In Religious Arbitration, Scripture Is The Rule... Continue reading