Historical Perspective for the Privatization of Dispute Resolution Last night we posted on Kilgore v. KeyBank, a March 7, 2012 Ninth Circuit opinion concerning the enforcement of an arbitration clause. Kilgore is part of the post-Concepcion trend (more like a juggernaut) to apply the Federal Arbitration Act and the Supremacy Clause so as to […]
Court Also Lays Bare The Policy Consequences For The Privatization Of Consumer Justice In Kilgore v. KeyBank, No. 09-16703 & No. 10-15934 (9th Cir. March 7, 2012) (authored by Judge Trott) (for publication), the Ninth Circuit resolves an FAA preemption issue dividing the district courts, lays bare the policy consequences for consumer justice, […]
Collision Between Mediation and Open Meeting Requirements L.A. Chung reports in the Los Altos Patch March 6, 2012 edition that the Los Altos School District abruptly cancelled a closed-door mediation with the Bullis Charter School 90 minutes before the session was to occur because of concerns about the Ralph M. Brown Act (Gov. Code […]
Entertaining, Instructive, and Free Slate, the online magazine, introduces a series of 10 entertaining and free podcasts about the art of negotiating, You can download these podcasts to your iPod, iPad, iTouch, iPhone, or PC, from iTunes where they are found under the rubric "Negotiation Academy." The series is presented by journalists Jill Barshay […]
Court Highlights Limited Scope of Review of the Final Award Under the FAA – As Compared to Under California Law Appellant Biller worked as an in-house attorney for Toyota Motor Sales (TMS). In 2007, Biller presented TMS with a claim of constructive wrongful discharge related to TMS’s alleged unethical discovery practices. The dispute […]
Delegation to the Arbitrator of the Power to Decide Whether the Arbitration Clause is Unconscionable Is “Horse of a Different Color” That Must Satisfy High Evidentiary Standard The employer, CantorCo2e, L.P., and an executive, appealed from an order denying their petition to compel arbitration of the claims under the Federal Arbitration Act (FAA) […]
Drafting Mistake by Employer Means Employer Must Accept the Consequences When the employer drafts an arbitration provision, and the Court of Appeal opines, “[i]t appears that there was a huge drafting mistake,” as it did in the next case, you know that the employer is going to have a bad day in court. […]
Look to the Scope of the Arbitration Provision to Determine Whether Costs Need to Be Addressed by the Arbitrator or the Court The plaintiff, a patient alleging malpractice, suing through his guardian ad litem, lost a first arbitration against a doctor. Unfortunately for the doctor, his party arbitrator had an ex parte contact […]
Arbitration Provision Drafted By Employer in Contract of Adhesion Was Too One-Sided The next case, though unpublished, nicely lays out principles relevant to an arbitration clause in the employment context, including procedural and substantive unconscionability, Federal Arbitration Act (FAA) preemption, and severability. Mayers v. Volt Managemnt Corp.,Case No. G045036 (4th Dist. Div. 3 […]
Missing You: Availability of Arbitrator Was a Material Factor or Consideration Relating to Petitioner’s Agreement to Submit to Arbitration Here, the petitioner agreed to arbitrate with a particular arbitrator who turned out to be unavailable. Nevertheless, the Superior Court of San Bernardino County compelled arbitration. The petitioner sought a writ to vacate the order […]