Both Sides Wanted To Correct Cost Award That Couldn't Be Corrected As with our immediately preceding post of May 19, 2013 on De Sena v. Richert, the issue here is whether cost issues should be presented to the trial judge or to the arbitrator. At arbitration, Plaintiffs were awarded $1,092,797, plus "costs in […]
"Customary Provision Allowing for the Award of Legal Fees in Any Action on a Contract" Was Missing Here This case presents a common issue: whether a prevailing party must seek fees from the arbitrator or from the trial court. Here, the issue was resolved by express, non-standard language in a settlement agreement. DeSena v. […]
Justice Aronson Dissents, Believing Majority Misapplied Legal "Sliding Scale" Test To Contract of Adhesion Plaintiff Nibler sued Monex, a precious metals trading company in which he invested, and lost, his inheritance. The trial court denied Monex's motion to compel arbitration, finding the arbitration provisions unconscionable. In fact Monex had been involved in another case, […]
Guidebook Disclaimers Were Self-Destructing In the next case, the Court of Appeal would not let the employer “have its cake and eat it too.” On the one hand, the employee Guidebook provided for arbitration. On the other hand, the employee Guidebook contained disclaimers that relieved the employer of contractual obligations. The employer could […]
Court Uses Full Bag Of Tools To Save Arbitration Provision Life boat drill. Between ca. 1910 and ca. 1915. Library of Congress. The Courts of Appeal have many tools for interpreting arbitration provisions, including sliding scales for weighing unconscionability, incorporation by reference, application of the implied covenant of good faith and fair dealing, […]
Only Factual Allegations Admitted By The Opposing Party Count As Judicial Admissions Section II of our next case is certified for publication. It addresses the issue of when an allegation in a complaint that defendants are agents of one another is binding on plaintiff. The issue is relevant to arbitration, because an argument often […]
Dissenting Judge Pregerson Attaches “Dense, Small Print, And Blurry Nine-Page Contract” As Appendix We posted on December 16, 2012 about the Kilgore v. Keybank oral argument to the Ninth Circuit, sitting en banc. The case involves a putative class action by former students of a failed helicopter flight-training school seeking injunctive relief against the […]
Waiver of Right to Trial of Employment Claims Was Not Clear and Unequivocal One of the hottest areas of contention concerning arbitration is the waiver of statutory rights through arbitration, and whether such a waiver is preempted under AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). In Harris v. Bingham McCutchen, B240522 (2nd Dist. […]
“Sliding Scale” Unconscionability Analysis Saves Arbitration Provision In a published decision, the Court of Appeal reverses the trial court’s denial of a petition to compel arbitration based on an automobile purchase contract. Vasquez v. Greene Motors, Inc., Case No. A134289 (1st Dist. Div. 1 March 27, 2013) (Margulies, Acting P.J., author 3:0) (published). […]
Sometimes “May” Means “Shall” and Sometimes “May” Means “May” When does an ADR provision that provides for arbitration require arbitration? Truplug, the inventor of a product used as an emergency plug for boat leaks, sued Forespar, which had exclusive rights to market the product, for misrepresentation and negligence in marketing the Truplug product. […]