A Progression: From Shrink Wrap To Browsewrap To Clickwrap Contracts Above: Shrink wrapped helicopters to be shipped to Iraq. US Navy photo, Bart Jackson. Wikimedia Commons. In a case that will be important to e-commerce merchants, and on-line consumers, a Ninth Circuit panel holds that Barnes & Noble’s website provided insufficient notice of […]
Plaintiff Alston, the founder of GB, brought a private equity firm into GB in exchange for the firm’s investment in GB to help build the company. Fast forward — Alston is terminated by GB as a director, and sues GB and two executives, alleging misrepresentation, declaratory relief, defamation, interference, and wrongful termination. Because Alston […]
Declarants Lacked Personal Knowledge If you want to compel arbitration, it sure helps to have a signed arbitration agreement, as defendant Wells Fargo discovered in Bachenheimer v. Wells Fargo Bank, N.A., B251980 (2nd Dist. Div. 5 July 21, 2014) (Turner, Mosk, Mink) (unpublished). Plaintiff, who suffered from traumatic brain injury, invested her savings […]
In Which The Trial Court Sums It Up Neatly For The Court Of Appeal. In Chan v. Delta Dental of California, A138402 (1st Dist. Div. 2 July 10, 2014) (Kline, Richman, Brick) (unpublished), a dental service provider sought to enforce an unsigned arbitration agreement based on an arbitration agreement that a dentist had not […]
Electronic Signing Procedure Didn’t Work Out For The Employer Did the employee or didn’t she agree to arbitrate? Bevmo used an on-line procedure to make the employment handbook and arbitration agreement available to employees, and employees provided an electronic signature, showing that they had received and read the employment handbook. That procedure was […]
Simple Failure Of Proof Dictated The Outcome Generally, a nonsignatory to an arbitration provision cannot compel arbitration. However, under certain circumstances a nonsignatory may invoke or be bound by an arbitration provision: “‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary’”. Suh v. Superior […]
Court Would Not Compel Arbitration Here Where The Beneficiary Had Not Sought The Benefits Of The Trust Instrument, But Rather Challenged Its Validity Pamela McArthur v. Kristi McArthur, A137133 (1st Dist. Div. 5 March 11, 2014) (Bruiniers, Jones, Needham) is a case arising out of an inharmonious “sister act.” The scenario is not […]
Many “Imaginative Arguments” Rejected To Get To Simple Conclusion I’ve had the unpleasant experience of purchasing electronic equipment, only to discover later that the seller had booked the sale as a lease. Therefore, our next case, Murphy v. DirectTV, Inc., No. 11-57163 (9th Cir. July 30, 2013) (Wardlaw, J. author 3:0) (published) struck a […]
Washington D.C. Bicycle Rental Shop. 1942. Marjory Collins, photographer. Library of Congress. Plaintiff Corbin sued her employer Specialized Bicycle Components, Inc. and its president for harassment, discrimination, and wrongful termination. The trial judge, who commented about the defendant’s failure to provide the JAMS rules, found the agreement unconscionable, and refused to compel arbitration. […]
Decision Reversing Trial Court’s Findings of Unconscionability and Non-Arbitrability of Tort Claims is Very Fact Specific – But Ruling On Tort Claims Is Worth Noting Bigler v. The Harker School, Case No. H037450 (6th Dist. February 6, 2013) (Elia, J., author 3:0) (published) is a reminder judicial determinations of unconscionability and arbitrability are often […]