A Textbook Example Of How Difficult It Is To Challenge An Arbitration Award. Our next case involved a family dispute in the California wine industry, following the death of the family patriarch. Nickel v. Far Niente Wine Estates, LLC, et al., A150513 (1/1 12/29/17) (unpublished). Affirming the trial court's denial of […]
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 Pristine Environments Inc. v. Signet Jewelers Limited et al., D071394 (4/1 10/13/17) (Nares, Benke, O'Rourke) (unpublished) involves an interesting wrinkle to the question: who decides the issue of arbitrability?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 […]
Arbitrator Acted Beyond Powers Because Award Violated Party's Statutory Rights And Clearly Defined Public Policy. Instead of initiating arbitration, a party subject to an arbitration agreement chooses to file a lawsuit when a dispute arises. Has the party breached the arbitration agreement? And if the arbitrator issues an award by holding […]
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 […]
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 […]
Ninth Circuit Joins Second And First Circuits. In Portland General Electric Company v. Liberty Mutual Insurance Company, et al., No 16-35628 (9th Cir. 7/10/17) an opinion authored by Senior District Judge Jed S. Rakoff, the 9th Circuit joins the 2nd and 1st Circuits to conclude that "incorporation of the rules of the ICC [International […]
The Important Distinction Is Whether Fraud In The Inducement Applies To The Contract Or To The Arbitration Clause. Though unpublished, Milder v. Holley, B267974 (2/5 1/31/17) (Kumar, Kriegler, Baker) has facts that neatly clarify an important gateway issue: does a judge or an arbitrator get to decide whether there was fraud in the inducement in […]
The next three cases show that, notwithstanding the trend to uphold agreements to arbitrate, there are still plenty of situations in which our California Courts of Appeal will agree that arbitration should be denied or stayed, and allow litigation to go forward. Tran v. Integra LifeSciences Corporation, No. G051620 (4th Dist. Div. 3 8/18/16) […]
Dissent Argues That Classwide Arbitrability Is A Gateway Question The Court Should Get To Decide. The courts have treated gateway arbitrability issues concerning the existence of an arbitration agreement and the scope of the agreement as “gateway” issues for the courts to decide, whereas so-called procedural issues are to be resolved by the arbitrator. […]