Arbitration, News, Celebrities: WSJ & CNN Report Trump Personally Directed His Attorney Michael Cohen To Seek Restraining Order Through Arbitration
New Blawg Sidebar Category: Infotainment?
The WSJ and CNN report today, October 2, 2018, that Pres. Donald J. Trump (aka David Dennison) directed his attorney Michael Cohen to seek a restraining order through an arbitration proceeding to prevent Stormy Daniels (aka Peggy Peterson aka Stephanie Clifford) from airing dirty laundry in a TV interview.
The WSJ reports that the arbitrator issued a restraining order, which, evidently, did not restrain Ms. Daniels.
We have previously posted on March 8, 2018, about the Trump/Daniels arbitration.
Miscellaneous Reviews: Books By Sunstein, Tribe And Matz About Impeachment
Two Books Reviewed By Your Blogger In Latest Issue Of California Litigation.
In the latest issue of California Litigation, Vol. 31, No. 2 (2018), p. 44, I've reviewed Cass R. Sunstein's Impeachment: A Citizen's Guide, and Laurence Tribe and Joshua Matz's To End A Presidency: The Power Of Impeachment. You can read the review, which is republished with the permission of California Litigation, by clicking here.
Arbitration, Discovery, Appealability: Court Of Appeal Reverses Superior Court’s Discovery Order Granting Uber’s Petition To Vacate Arbitration Panel’s Discovery Decision
This Is Part Of The Ongoing Google – Uber Litigation/Arbitration Over Alleged Misappropriation By Uber Of Google Self-Driving Car Technology.
Google initiated arbitration proceedings against two former employees involved in developing self-driving car technology after the employees formed their own company (Otto) and their new company was acquired by Uber. A discovery dispute ensued: "Google sought discovery from Uber, a nonparty to the arbitration, related to pre-acquisition due diligence done at the request of Uber and Otto's outside counsel by Stroz Friedberg LLC." The arbitration panel determined the due diligence documents sought by Google were not protected by attorney-client privilege or the work-product rule. Uber, a non-party to the arbitration, then initiated a "special proceeding" in superior court, limited in scope to vacating the arbitration panel's discovery order, and prevailed. Google appealed the superior court's order. Uber Technologies, Inc., v. Google LLC, A153653 (1/3 9/28/18) (Siggins, Pollak, Jenkins).
The case raised an arbitration issue of first impression: "We know of no case that addresses the precise issue before us, namely, whether a party to an arbitration has a right to appeal an adverse superior court order vacating an arbitrator's discovery order in favor of a third party to the arbitration." The Court of Appeal held that, given the nature of the "special proceeding" involving a discovery issue and completely resolving the discovery issue, there was a final judgment, and Google could appeal.
The Court of Appeal went on to hold that the due diligence documents sought by Google were not protected by attorney-client privilege or by the work-product rule.
COMMENT: We have written an article and posted on July 17, 2018, about the availability of third-party document discovery in arbitration governed by the Federal Arbitration Act. The general rule is that such discovery is not available, though the documents can be obtained in connection with a hearing. In Uber v. Google, the issue is not discussed, from which we surmise that the arbitration proceedings were governed by the California Arbitration Act, which unlike the FAA, does allow for third-party document discovery.
Pending Cases, Federal Arbitration Act, Delegation: New Prime v. Oliveira Is Scheduled For SCOTUS Oral Argument On October 3, 2018
Does Exemption In Section 1 Of The FAA For Workers Engaged In Interstate Commerce Apply To Independent Contractors? And Who Decides?
We posted earlier about this case on February 26, 2018. The issues presented are:
(1) Whether a dispute over applicability of the Federal Arbitration Act's Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA's Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements."
COMMENT: Oliveira worked for an interstate trucking company under a contract that purported to set up an independent contractor relationship. He sued the trucking company for labor violations. The district court determined that it, rather than the arbitrator, should decide the threshold arbitrability issue. Affirming the district court, the First Circuit Court of Appeals held that Section 1, which defines terms in the FAA, and provides that nothing in the FAA shall apply to workers engaged in interstate commerce, applies to contracts that purport to establish the independent contractor relationship.
International Arbitration, Reviews: Article On “Golden Opportunities For The Golden State” Addresses Rise Of International Arbitration In California
Passage Of SB 766 Opens Up Opportunities For Foreign Attorneys To Participate In International Arbitration In California.
An excellent article by Eric Z. Chang appearing in California Litigation –The Journal of the Litigation Section of the CLA, Vol. 31,No. 2 (2018), p. 27, explains how an ambiguity in the law as to whether foreign attorneys could participate in international arbitration in California has been cleared up by the passage of SB 766. The problem had been uncertainty as to whether foreign attorneys who participated in international arbitration in California were engaging in the unauthorized practice of law. With the legislative fix now in place, Chang sees a bright new future for expanding the large market for international arbitration in California.
Arbitration, Class Action: 9th Circuit Reverses District Court In Ongoing Litigation Brought By Uber Drivers
Consolidated Appeals Brought By Uber Overturn Pro-Driver Rulings Of District Court.
O'Connor v. Uber, No. 16-5595, and related appeals (9th Cir. 9/25/18) (Clifton, Tallman, Ikuta) reverses the district court's denial of Uber's motions to compel arbitration, based on Mohamed v. Uber Technologies, Inc., 848 F. 3d 1201 (9th Cir. 2016). Mohamed, which we blogged about on September 11, 2016, reversed the district court's orders denying Uber's motion to compel arbitration, and held that the issues of arbitrability and of the arbitrability of PAGA claims had been delegated to the arbitrator in Mohamed, and in a related appeal, Gillette v. Uber Technologies, Gillette's PAGA claims could proceed in court on a representative basis. These Uber Driver cases are ones in which the drivers claim they have been misclassified as contractors rather than employees.
In O'Connor v. Uber, the panel has now rejected plaintiffs' additional argument that the arbitration agreements were unenforceable. The panel was not persuaded by plaintiffs' first argument that the lead plaintiff could opt out of arbitration on behalf of the entire class.
In a December 21, 2016 follow-up post about the Uber Driver cases, we noted that the Ninth Circuit had amended a footnote in the Mohamed opinion so as to remove a suggestion that a class-action waiver would not violate the NLRA allowance of concerted action, so long as the Uber drivers had an opt-out provision. We suggested that the amendment of the footnote was a material change in light of the then-ongoing issue regarding whether class-action waivers fell afoul of the NLRA policy allowing concerted activity by employees.
And as it turned out, the panel in O'Connor v. Uber rejected plaintiff's second argument that the arbitration agreements were unenforceable because they contained class action waivers that violated the NLRA. As the panel explained, the Supreme Court "answered that question and rejected Plaintiffs' argument in Epic Systems Corp. v. Lewis , 138 S.Ct. 1612 (2018)."
In addition to reversing the district court's denial of Uber's motions to compel arbitration, the Court explained that the enforceability of the arbitration agreements required reversal of the district court's class certification orders. Additional orders governing communication with the class were reversed, because the class certification orders were reversed.
COMMENT: Given SCOTUS's rulings over the past decade on the enforceability of arbitration agreements, it seems most likely that an appeal would lead to the same result.