Arbitration Clause Was Infirm Because It Was A “Side Agreement” Neither Filed With Nor Approved By California’s Insurance Commissioner. Nielsen Contracting, Inc. v. Applied Underwriters, Inc., Case No. D072393 (4th Dist., Div. 1 May 3, 2018, modified on May 23, 2018) (published) (Haller, J., author, concurred in by McConnell, P.J. and Huffman, J.) decided […]
Does Delegation To Arbitrator Of Arbitrability Issue Need To Occur Even If Arbitration Claim Is Wholly Groundless? In the April 18, 2018 on-line issue of ScotusBlog, under "Petition of the Day," Aurora Barnes posts: "Henry Schein Inc. v. Archer and White Sales Inc. 17-1272 Issue: Whether the Federal Arbitration Act permits a court to […]
Arbitrator Or Judge? SCOTUSBlog reports today that the Supreme Court has added an arbitration case to its next term: "New Prime Inc. v. Oliveira Docket No. Op. Below Argument Opinion Vote Author Term 17-340 1st Cir. TBD TBD TBD TBD OT 2018 Issues: (1) Whether a dispute over applicability […]
To Ask The Question Is To Answer It . . . My law professors seemed fond of that old chestnut, "to ask the question is to answer it." Once you know the question presented by the Court of Appeal in Douglass v. Serenivision, Inc., B277574 (2/2 2/18/18) (Hoffstadt, Lui, Chavez) (published), you will […]
JAMS Clause Delegating Validity Issue To Arbitrator Was Not Clear and Unmistakable Delegation Of Legality Issue. Who decides whether an arbitration agreement is part of an enforceable legal services agreement, the judge or the arbitrator? That was the issue addressed by the Hon. Harold E. Kahn in an "Order Denying Defendants' Petition for […]
What Does "Generally" Mean? Pristine Environments Inc. v. Signet Jewelers Limited et al., D071394 (4/1 10/13/17) (Nares, Benke, O'Rourke) (unpublished) involves an interesting wrinkle to the question: who decides the issue of arbitrability? Case law holds the issue of arbitrability is decided by the Court, absent clear and unmistakable evidence of the parties' intent […]
Sixteen Page Majority Decision Draws Fifteen Page Concurrence And Dissent From Justice Segal. If an agreement to arbitrate is unconscionable, why should decisions about arbitrability ever be sent to the arbitrator? Answer: ordinarily, it is presumed that decisions about arbitrability are to be made by the judge, and therefore a determination that the […]
Agreement Between The Parties That Award Could Be Reviewed For Legal Error Made The Difference. In Harshad & Nasir Corporation v. Global Sign Systems, Inc., and related appeals, B269427, B275942, B275947 (2/2 8/15/17) (Rothschild, Chaney, Lui), the Court of Appeal considered three related appeals of parties fighting over allegedly unpaid invoices amounting to $114,823.72, […]
Enforceable Delegation Provision Means The Buck Does Not Stop With Court, But Gets Passed To Arbitrator. Aanderud v. Superior Court (Vivint Solar Developer, LLC, Real Party In Interest), F073277 (5th Dist. 7/26/17) (Gomes, Hill, Meehan), is worth reading for its analysis of how a delegation provision is applied to a consumer arbitration, where the […]
In California, There Is No Universal Rule That Arbitrator Or Court Decides Whether A Class Action Can Be Arbitrated — It Depends On The Agreement. The United States Supreme Court has held that a party may not be compelled to submit to class arbitration unless there is an express contractual basis for concluding the […]