Arbitration/Waiver: Employer That Quickly Asserted Right To Arbitrate After Concepcion Was Decided Did Not Waive Right To Arbitrate
Timing Is Everything
![[Clock for the House of Representatives chamber flanked by American Indian and backwoodsman figures]](http://lcweb2.loc.gov/service/pnp/cph/3b30000/3b32000/3b32800/3b32870r.jpg)
Plaintiff Reyes, a security officer, filed a class complaint alleging wage and hour violations against Liberman Broadcasting, Inc. (LBI). The trial judge denied a motion by LBI to compel arbitration, on the grounds that the employer failed to properly and timely assert its right to arbitrate. LBI appealed the trial court’s order denying its motion to compel arbitration. Reyes v. Liberman Broadcasting, Inc., Case No. B235211 (2nd Dist. Div. 1 August 31, 2012) (Johnson, J., author) (published).
Reyes filed his complaint on May 27, 2010. LBI answered on August 5, 2010, asserting 22 affirmative defenses, but leaving out the existence of the arbitration agreement as an affirmative defense. Reyes propounded discovery, LBI took a session of Reyes’ deposition, the parties engaged in lengthy meet and confer efforts, and the parties scheduled a class-wide mediation for July 1, 2011. LBI did not file its motion to compel arbitration until July 5, 2011, more than a year after Reyes filed his complaint. Aren’t the delay, the discovery, and the scheduling of class-wide mediation inconsistent with an intention to mediate?
Not so much here, said the Court of Appeal. Timing was critical. At the end of April 2011, the Supreme Court overruled California’s Discover Bank case in AT&T Mobility v. Concepcion, 563 U.S. __ , 131 S.Ct. 1740 (2011). The court held in Concepcion that “a court may not ‘rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable.’” Id. at 1747. “Before Concepcion,” explained the Court of Appeal in Reyes, “LBI reasonably concluded that it could not enforce the Arbitration Agreement.” But after Concepcion was decided in April 2011, LBI promptly informed Reyes that LBI would move to compel, and filed its motion promptly in July 2011.
What about the discovery? “Very limited,” said the Court of Appeal. Discovery had been propounded, but no discovery had actually been exchanged, as the parties bogged down in “extensive meet and confer efforts.” True, one session of a deposition had been taken of the named plaintiff – but depositions can also be taken in discovery under the rules of the American Arbitration Association. So no prejudice here.
The Court of Appeal distinguished Hoover v. American Income Life Ins. Co., 206 Cal. App.4th 1193 (2012), a case we posted about on June 14, 2012. In Hoover, the defendant “actively litigated.” How? “[B]y twice trying to remove the case to federal court, availing itself of ‘discovery mechanisms like depositions not available in arbitration,’ and soliciting putative class members ‘in an effort to reduce the size of the class.’”
Showing just how fact-oriented waiver inquiries become, the Court of Appeal found “more problematic” the fact that LBI agreed to a private mediation on a class-wide basis. Such a mediation could only have been fruitful if a settlement of class-claims had been blessed by a court. However, rather than emphasizing that defendant’s actions were inconsistent with the right to arbitrate, the Court of Appeal instead decided to emphasize the lack of resulting prejudice: “The agreement to mediate did not guarantee the parties would reach a class-wide agreement. Therefore, we do not find prejudice from LBI’s agreement to nonbinding class-wide private mediation.”
The trial court’s order denying the motion to compel arbitration was reversed.
Comment: St. Agnes Medical Center v. PacifiCare of California, 31 Cal.4th 1187 (2003) sets forth the multi-factor test to apply for determining whether a waiver has occurred. We note that a certain amount of “play” exists in the multi-factor test – depending, for example, on whether the court chooses to emphasize actions “inconsistent with the right to arbitrate” or prejudice.
Arbitration: Second District Division 1 Construes 3 Separate Agreements And Concludes Parties Did Not Agree To Arbitrate
Incorporation By Reference Argument Fails
Freedom Films, LLC sued Nu Image, Inc., and M3 Media, Inc. for breach of contract, accounting, and fraud, adding doe defendants later as alleged alter egos. Defendants moved to compel arbitration under an arbitration provision. The trial court denied the motions on the ground that the parties had not agreed to arbitrate Freedom Film’s rights as to the picture entitled The Mechanic. The original named defendants and the doe defendants appealed. Freedom Films, LLC v. Nu Image, Inc., et al., Case Nos. B236216, B236765 (2nd Dist. Div. 1 August 30, 2012) (Rothschild, J., author) (unpublished.).
The problem for defendants was that there were three different agreements knocking about, rather than working smoothly together – and because an agreement to arbitrate the rights at issue could not be incorporated by reference, both the trial court and the Court of Appeal concluded that there was no agreement to arbitrate.
Freedom Films sued upon a January 23, 2009 letter agreement entered into with Nu Image and Home of the Brave Productions. But the letter agreement did not contain an arbitration provision.
A 2006 distribution agreement between MGM, and Nu Image did contain a dispute resolution provision. Furthermore, a February 10, 2009 settlement agreement entered into by MGM, Nu Image, Home of the Brave Productions, and Freedom Films, incorporated the dispute resolution provision in the distribution agreement. So why didn’t that result in a binding agreement to arbitrate? Two problems here.
First, Freedom Films sued on the letter agreement, not the settlement agreement, and the settlement agreement did not exist at the time of the letter agreement.
Second, though the letter agreement did refer back to audit rights in the 2006 distribution agreement, it failed to clearly incorporate the 2006 arbitration provision that was incorporated in the February 2009 settlement agreement. See Amtower v. Photon Dynamics, Inc., 158 Cal.App.4th 1582, 1608 (2008) (“subject document must contain some clear and unequivocal reference to the fact that the terms of the external document are incorporated”)..
Defendants made the additional argument that it was for the arbitrator to decide whether the dispute was subject to arbitration. Here the court distinguished between deciding whether there was an agreement to arbitrate (decision for the court) and whether the dispute was within the scope of the arbitration provision (maybe a decision for the arbitrator, but not at issue).
The orders denying motions to compel arbitration were affirmed.
Comment: the lesson for practitioners is that one must be very careful with incorporations by reference. The incorporation should be clear and unambiguous to be effective. A further problem arises when the document one would have liked to incorporate doesn’t yet exist.
Blawg Bonus: “Hollywood accounting (also known as Hollywood bookkeeping) refers to the opaque accounting methods used by the film, video and television industry to budget and record profits for film projects.” Wikipedia entry, “Hollywood accounting.”
News: Roger D. Fisher, Co-Author of “Getting to Yes,” Dies at 90
Mediation Approach Addressed Mutual Interests
On August 27, 2012, Leslie Kaufman reported in the New York Times, that Harvard law professor Roger D. Fisher died at the age of 90. Professor Fisher was a co-author with William Ury and Bruce Patton, of the mediation ur-text, “Getting to Yes.” Professor Fisher also co-founded the Harvard Negotiation Project. He also advised on resolving conflicts around the globe.
His New York Times obituary included the following:
“His emphasis was always on addressing the mutual interests of the disputing parties instead of what separated them.”
And, on the occasion of his 80th birthday, his colleague John Kenneth Galbraith toasted him:
“Whenever I thought ‘Someone should do something about this,’ it eased my conscience to learn that Roger was already working on it.”
Arbitration/Employment/Waiver/Burden of Proof/Construction: Because Collective Bargaining Agreement Did Not “Clearly And Unmistakably” Waive Plaintiffs’ Right to Bring Statutory Claims In Judicial Forum, Employees Did Not Waive Their Rig
Denial of Motion to Compel Arbitration Hinges on Burden of Proof and Existence of Statutory Rights
One of the “hot topics” we have posted about is whether the right to sue in court can be waived when the rights at issue are statutory rights. See our June 5, 2012 post on Iskanian v. CLS Transportation Los Angeles, LLC, Case No. B235138 (2nd Dist. Div. 2 June 4, 2012) (certified for publication) (interpreting AT&T Mobility v. Concepcion broadly to hold that the Federal Arbitration Act “conclusively invalidates the Gentry test” for finding that a statutory right is unwaivable and cannot be arbitrated); and our June 14 post on Hoover v. American Income Life Insurance Company, Case No. E052864 (4th Dist. Div. 2 May 16, 2012) (certified for publication) (underscoring a split in the law, concerning the arbitrability of state statutory labor claims). Ordinarily arbitrability turns on contractual interpretation and contract defenses.
Our next case, however, is important because of its particular focus on the burden of proof. In Bartoni v. American Medical Response West, A130333 (1st Dist. Div. 2 August 24, 2012) (Kline, P.J.) (unpublished), the trial court refused “to compel arbitration of plaintiffs’ wage and hour claims, where it determined the collective bargaining agreements (CBAs) between the union and defendant did not contain a ‘clear and unmistakable’ waiver of plaintiffs’ right to a judicial forum for their statutory claims.” The employer appealed.
The opinion is notable for its extensive review of cases applying the “clear and unmistakable” standard to determine whether there has been a waiver of a judicial forum. Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998) established the standard. In Wright, though the CBA contained an arbitration provision, a longshoreman filed suit in district court under the Americans With Disabilities Act of 1990. The district court dismissed the case because the employee failed to pursue grievance procedures in the CBA, the Fourth Circuit Affirmed, and the Supreme Court reversed, because the CBA did “not contain a clear and unmistakable waiver of the covered employees’ rights to a judicial forum for federal claims of employment discrimination.” Id. at 82. The rationale for the “clear and unmistakable” standard is that where the employee’s rights are created by statute, the ultimate question for the arbitrator will not be contractual interpretation, but an interpretation of what federal law requires – an issue for judicial determination, unless there is a “clear and unmistakable” waiver of the right to have a judge decide.
The court explains in Bartoni: “In applying the Wright analysis to determine whether there has been a sufficient explicit waiver, courts look to the generality of the arbitration clause, explicit incorporation of statutory requirements, and the inclusion of specific statutory provisions.”
Applying the Wright analysis in Bartoni, the Court of Appeal found that the arbitration provision was “too general”, ambiguous, and failed to incorporate specific statutory provisions regarding wage and hour disputes. It treated the use of the word “dispute” as too general in context, and borrowed the scorn heaped upon the ambiguous phrase “and/or” by legal writer Bryan A. Garner: “A legal and business expression dating from the mid-19th century, and/or has been vilified for most of its life – and rightly so.” (Bartoni, footnote 3).
The court’s extensive review of federal and state cases analyzing a CBA waiver of a statutory right led it to observe few cases hold a CBA waiver of a statutory right was clear and unmistakable, whereas, “numerous California cases have concluded CBAs failed to clearly and unmistakably require arbitration of statutory claims.”
The order denying the motion to compel arbitration was affirmed.
Labor strategists confer. 1937. From the left: Sidney Hillman, member of the CIO; Homer L. Martin, President of the U.A.W.; Leo Pressman, CIO General Counsel; John L. Lewis, President of the United Mine Workers; and John Brophy, Director of the CIO.
Arbitration/Enforceability/Unconscionability: Fourth District Division 1 Agrees With Trial Court That Automobile Dealership’s Arbitration Provision Is Unconscionable
However, California Supreme Court Will Likely Make Ultimate Determination of Issues in Pending Sanchez v. Valencia Holding Co. Case
Arbitration clauses in contracts for automobile purchases and leases offer fertile ground for litigation. See our April 12, 2012 post about Kolev v. Euromotors West/The Auto Gallery, 586 F.3d 1024 (9th Cir. 2011) (opinion withdrawn on April 11, 2012), and August 1 post about Caron v. Mercedes-Benz Financial Services USA LLC, Case No. G044550 (4th Dist., Div. 3 July 30, 2012). Our next case, Goodridge v. KDF Automotive Group, Inc., Case No. D060269 (4th Dist. Div. 1 August 24, 2012) (McDonald, Acting P.J., author) (unpublished), involves an automobile dealership’s appeal of an order denying its petition to compel arbitration of the action filed against it by plaintiff Goodridge arising out of his purchase of a used automobile. Both the trial judge and the Court of appeal concluded that the arbitration provision was procedurally and substantively unconscionable.
Marion Post Wolcott, photographer. 1939. Library of Congress.
Procedural unconscionability is rarely a difficult issue in such cases, since an adhesion contract is involved. Here, as described by the Court of Appeal, there was a “stack of preprinted form documents”, lack of an opportunity to read all the documents or to negotiate the terms, and lack of evidence that purchaser was clearly informed about the arbitration provision. The contract documents were long and printed on both the front and back sides of the pages. Though language in bold print on the front side of the preprinted contract did state that the contract contained an arbitration clause on the reverse side, “there is no provision for Goodridge’s signature or initials under or adjacent to that language.” The Court of Appeal readily concluded that there was both “oppression and surprise”, adding up to procedural unconscionability.
The contract was also found to be substantively unconscionable, because it was too one-sided (though printed on both sides). First, the arbitration clause provided either party could appeal an arbitrator’s award if it exceeded $100,000. Second, each party could appeal an arbitrator’s award of injunctive relief against it. Third, the arbitration clause provided an appealing party must pay the filing fees and other arbitration costs for appeal, subject to a final determination. Fourth, the arbitration clause did not apply to self-help remedies, including repossession. The court found that those provisions benefited the seller far more than the buyer. Because the contract had four problems permeating it with unconscionability, a court exercising its discretion could properly refuse a request to save the contract by severing unconscionable terms.
COMMENT: Footnote 1 of Goodridge notes, “the circumstances (e.g., preprinted contract and arbitration clause) and issues in this case are virtually identical to those in Sanchez v. Valencia Holding Co., LLC (2011) (A201 Cal.App.4th, review granted Mar. 21, 2012, S199119 (Sanchez). The California Supreme Court will likely make the ultimate determination of the issues discussed in this case.” The California Courts of Appeal website describes Sanchez for the public and the press: "Petition for review after the Court of Appeal affirmed an order denying a petition to compel arbitration. This case includes the following issue: Does the Federal Arbitration Act (9 U.S.C. ? 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?”
Arbitration/Vacatur: “Manifest Disregard Of The Law” Is Manifestly Not A Ground For Vacating Arbitration Award Under California Law
Second District Division 2 Concludes That Arbitrator Did Not Disregard Choice Of Law Provision
Roller Bearing Company of America (RBC) manufacturers roller bearing assembly parts and Honeywell International use them in engines it manufacturers. Roller Bearing Company of America, Inc. v. Honeywell International, Inc., Case No. BS127074 (2nd Dist. Div. 2 August 23, 2012) (Chavez, J.) (unpublished) is a contract dispute between the two companies. The arbitrator issued a ruling in favor of Honeywell in this breach of contract dispute, the judgment confirmed the award, and RBC appealed.
Inspector at the Fafnir Bearing Company inspecting large roller bearing which will probably end up in an Army tank. 1943. Gordon Parks, photographer. Library of Congress.
The main issue in the case was whether the arbitrator disregarded a New York choice of law provision in order to consider inadmissible parol and extrinsic evidence to contradict the terms of the contract. Honeywell argued that the arbitrator’s disregard of the parties’ contractual choice of law provision constituted “manifest disregard of the law.
We posted on August 21, 2012 about Comerica Bank v. Howsam, et al. Case No. B232749 (2nd Dist. Div. 5 August 20, 2012) (Turner, P.J., author)(partially published) , explaining that “manifest disregard of law” is not a ground for vacating an arbitrator’s award in California. The grounds for vacatur are set forth in Cal. Code Civ. Proc. section 1286.2, and “manifest disregard of the law” is not one of those grounds. The court concluded the same here, but then treated the argument as one that the arbitrator “exceeded the scope of his authority” by refusing to apply New York law governing parol evidence and integrated contracts. The different label placed on the argument allowed the court to consider whether it provided a basis for vacating the award. However, the court then concluded that the argument the arbitrator had disregarded New York law was “flatly contradicted” by the record. The arbitrator had considered extrinsic evidence to interpret ambiguity, something permitted under New York law and the law of most states.
RBC’s argument that the arbitrator admitted inadmissible parol and extrinsic evidence was “simply another way of saying that the arbitrator committed legal error.” But legal error is not a ground for vacating an arbitration award.
Judgment affirmed.