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Business Litigator, Mediator
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NYT Article Describes Bank’s Use Of Arbitration With Customers Complaining About Creation Of Sham Accounts. Above: Wells, Fargo & Co.'s Express Office, C Street, Virginia City. 1866. Library of Congress. The NYT, which ran a series of articles in 2015 critical about the spread of arbitration, has published an article... Continue reading
It’s Not Exactly The Same As Skipping Mediation In A Home Sale Purchase In California . . . . California courts have established that the consequence of not requesting mediation before suing for breach of a California Association of Realtor’s residential purchase agreement is that the plaintiff will not recover... Continue reading
Absence Of A Record Was A Major Problem For Appellant. Law Offices of Mark Waecker, APC v. Pius Kim, B268212 (2/5 12/1/16) (Turner, Kriegler, Kumar) (unpublished) illustrates the proposition that an arbitrator’s decision is generally not reviewable for factual or legal errors. Moncharsh v. Heily & Blase, 3 Cal.4th 1... Continue reading
Acknowledgment Of Employee Handbook Is Not Necessarily Agreement To All Its Contents. Courts apply the rule requiring resolution of ambiguities against the drafting party “with peculiar force in the case of a contract of adhesion.” That’s what happened in Rollins v. Stack & Associates, CPAs, No. D069390 (4/1 11/30/16) (Nares,... Continue reading
Dealer Wanted To Go To Three-Arbitrator Panel After Receiving Adverse Arbitration Award, And Everyone Agreed That ADR Arbitral Forum Lacked “Appellate” Rules. So? Plenty of arbitration disputes arise from arbitration clauses in auto sales contracts and leases – hence our sidebar category, “Automobiles.”. Here’s an unusual one, based on fairly... Continue reading
Employer Sought To Distinguish Its Case Based On Specific Language Of Arbitration Clause . . . No Go. Williams v. Superior Court, 237 Cal.App.4th 642 (2015) recognizes that a representative action waiver of a PAGA claim is ineffective because the PAGA claim is not divisible into separate individual and representative... Continue reading
Mediation Of Dispute Between Brothers Drew Our Attention To This Case. Jogani v. Jogani, B268162 (2/1 11/25/16, mod. 11/28/16) (Chaney, Rothschild, Johnson) (unpublished) is about attorney disqualification and conflicts. The underlying dispute among the Jogani brothers appears to have been sliding up and down the California courts for fifteen years,... Continue reading
There Is No Absolute Bar To Discovery Of Information Designated Confidential In A Settlement Agreement. In 2007, Younan Properties entered into a settlement agreement with its CFO Thompson requiring confidentiality. Thompson had claimed that Younan Properties had engaged in unfair business practices, and wrongfully discharged him. In 2014, investors sued... Continue reading
Key Issue: Who Is A Third Party Within The Meaning of 1281.2(c)? Reger v. Glaser Weil Fink Howard Avchen & Shapiro, LLP, G052352 (4/3 11/22/16) (Aronson, Bedsworth, Ikola) (unpublished) shows how a party with an otherwise valid arbitration clause can be thwarted from arbitrating through the application of Cal. Code... Continue reading
Obama Administration Has Sought Change In Law To Prevent Educational Institutions Getting Federal Funds From Requiring Students To Sign Pre-Dispute Arbitration Clauses. Jillian Berman reports on July 22, 2016 in MarketWatch that students were able to sue Trump University in the courts because the students were not required to sign... Continue reading
The European Commission Has Deemed The Privacy Shield Framework Adequate To Enable Data Transfers To US Under EU Law. On July 12, 2016, the European Commission adopted the EU-U.S. Privacy Shield. I am blogging about this because it relates to transfer of data from the EU to the U.S., and... Continue reading
Mark D. Gough’s Study Seeks To Correct For Systematic Differences In Case Characteristics Between Arbitral And Court Forums. Back on August 19, 2014, I posted about Mark D. Gough’s study of arbitration outcomes arising from his research comparing employment discrimination cases heard in arbitration and civil litigation. At the time,... Continue reading
Confidentiality May Seem A Self-Evident Feature Of International Arbitration – In Which Case, You May Be Surprised. At the 41st Annual IP Conference held in Santa Barbara, I was asked an excellent question yesterday about dealing with confidentiality in international arbitrations. Unfortunately, this is not a subject about which I... Continue reading
Fellow Mediators Erica Bristol, Phyllis G. Pollack, and I Participated On Panel. Above: President Roosevelt and party visiting Old Franciscan Mission in Santa Barbara. 1903. Library of Congress. On November 10, 2016, I had the pleasure of participating in a panel with fellow mediators Erica Bristol and Phyllis G. Pollack... Continue reading
Ninth Circuit Allows Equitable Tolling For Claim To Vacate Award Brought More Than Four Years After Entry Of Award. Fraud against Truth. Currier & Ives. 1872. Library of Congress. Yikes! In 2009, Move, Inc. lost a multi-million dollar securities claim before a three-member FINRA (Financial Industry Regulatory Authority) arbitration panel.... Continue reading
Unlike The Arbitration Agreement In Iskanian, The Agreement Here Did Not Include A Waiver Of The Right To Bring A PAGA Representative Claim. The Court in Eaton v. Big League Dreams Manteca, LLC, C079374 (Third District 11/2/16) (Renner, Nicholson, Murray) (unpublished) addresses an issue that some may have thought was... Continue reading
The Circuits Disagree About Class Action Waivers In Arbitration, The NLRA, And Prohibition Of “Concerted Activities” In Pursuit Of Employees’ “Mutual Aid Or Protection”. On October 11, 2016, I blogged that on September 8, a petition for a writ of certiorari had been filed by the accounting firm in Morris... Continue reading
“Vet Your Fee Arbitrator Early.” In May 2016, I posted on the then unpublished case Baxter v. Rock, and posted later that the case was partially published. 247 Cal.App.4th 775 (2016). Relying on the case, I pointed out that an arbitrator’s mistake about an attorney’s fees award was no basis... Continue reading
Petitioner And Respondent Frame Issue Quite Differently. I wrote about Kindred Nursing Centers Limited Partnership v. Clark in an August 5, 2016 post, stating that the nursing company petitioning from the Kentucky Supreme Court to SCOTUS presented the issue thusly: ”Whether the FAA preempts a state-law contract rule that singles... Continue reading
Is There A Meaningful Distinction Between Contract Enforcement And Contract Formation For Purposes Of FAA Preemption? Kate Howard’s October 26, 2016 post about “Petitions To Watch” in Scotusblog notes that an arbitration case, Tamko Building Products, Inc. v. Hobbs, No. 15-1318, is up for consideration at the conference of October... Continue reading
Here’s A Good Example Of Why It Is Harder To Set Aside A Mediated Spousal Settlement Than An Unmediated, Negotiated Settlement. In Marriage of Cooke, B257791 (2/7 10/17/16) (Segal, J.) (unpublished), the wife moved for entry of a stipulation for judgment that she and her husband signed. The opinion rather... Continue reading
California Courts Have Repeatedly Held That PAGA Claims Are Between Employee Acting On Behalf of State, And Employer, And Therefore Arbitration Cannot Be Compelled By Employer. Iskanian v. CLS Transportation Los Angeles LLC, 59 Cal.4th 348 (2014) held, “[A] PAGA claim lies outside the FAA’s coverage because it is not... Continue reading
Fees Request Treated As “Hot Potato” By Arbitrator And Judge. A nice post dated October 20, 2016 in California Attorney’s Fees summarizes the convoluted procedure in Miceli v. Staples, Inc., Case No D070676 (4th Dist., Div. 1 Oct. 20, 2016) (unpublished), describing the case as one “where the arbitrator and... Continue reading
Substantive Rights Created By USERRA Are Not Lost By Arbitrating. On the one hand, on the other hand . . . On the one hand, there is a liberal federal policy favoring arbitration agreements. On the other hand, the Federal Arbitration Act’s arbitration mandate can be “overridden by a contrary... Continue reading
On August 23, 2016, I blogged that the issue in Morris v. Ernst & Young was clearly framed by the majority and minority opinions, and almost certainly headed for Supreme Court Review. In that Ninth Circuit case, the majority held that an employer violates sections 7 and 8 of the... Continue reading