On November 14, 2022, the Los Angeles Times reported: "About 48,000 unionized academic workers across the University of California’s 10 campuses . . . walked off the job Monday morning, calling for better pay and benefits."
Is mediation the path to resolution? “'At this time, we believe that the best path to an agreement is with the aid of a third-party mediator,”'Ryan King, a UC spokesperson, said in a statement Monday afternoon. 'We continue to encourage the union’s partnership in pursuing mediation.'”
But Rafael Jaime, president of United Auto Workers Local 2865, representing 19,000 of the workers, had a different opinion. “'At this point, the priority should be round-the-clock bargaining in good faith as opposed to switching to a mediation process,' he said."
COMMENT: Choosing, rejecting, or delaying mediation can be a strategic decision.
An Addition To My February 4, 2021 Post About Videoconferencing: Tips For Using Zoom For Remote Mediations.
In what could have been an Abbott and Costello routine, had those comedians been born into the Age of the Internet and Zoom, a Texas judge and a hapless attorney had to grapple with the vagaries of a cat filter during a court call. So now we have one more tip for our profession's use of videoconferencing: beware the use of cat filters.
Here's a link to the viral video demonstrating the infelicitous peril of feline interference:
Above: Sketch of Edward Lear at age 73 1/2 and his cat Foss, age 16.
According to Wikipedia, Foss is also mentioned in Lear's poem "How Pleasant to Know Mr Lear":
He has many friends, lay men and clerical, Old Foss is the name of his cat; His body is perfectly spherical, He weareth a runcible hat.
Quinn Emanuel And Spin-off LawFirm Selendy and Gay.
Jack Newsham authored an April 24, 2019 article, appearing in New York Law Journal, and entitled, "Judge Dismisses Suit Against Quinn Emanuel by Partners of Spinoff, Sends to Arbitration." Newsham begins by quoting the judge, who wrote, "It is for the arbitrator in the first instance to [determine] whether the provision at issue is an unenforceable forfeiture-for-competition clause. Any further inquiry on my part is precluded by the broad arbitration provision and the strong public policy compelling its enforcement." And Newsham ends by quoting John Quinn, "The dispute is only about money and will eventually be resolved one way or another for an immaterial amount." [emphasis added].
Note: A 2017 article reported that JD Journal reported the previous year that of all law firms, "Quinn Emanuel topped the list with $1,077,586 per non-equity partner." [emphasis added]. Evidently "immaterial" is a relative term.
Cantor Fitzgerald.
In 2018, Lee Stowell, a junk-bond saleswoman at Cantor Fitzgerald, sued her former employer, after being dismissed as "part of a round of layoffs." She alleged that she had been subjected to a pattern of sexual harassment at Cantor Fitzgerald. Katia Porzecanski and Max Abelson reported on April 25, 2019 in Bloomberg News about Lee Stowell's experience as an employee, her lawsuit, and Cantor Fitzgerald's thus far unsuccessful effort to enforce its arbitration agreement. The article is entitled, "Cantor Fitzgerald Doesn't Want This Woman Talking About Her Mug in Court." The title of the article is a reference to Stowell's mug at work, which she found filled with feces one day. Whether or not she gets her day in court -- Cantor Fitzgerald is appealing -- you and I now know about the mug.
Comment.
Porzecanski and Abelson write about Stowell, "She says she wants to help harassment victims escape forced arbitration." Similarly, in 2018, the California Legislature sought to pass AB 3080, a bill that, had it become law, would have prohibited an applicant for employment or employee from being required to waive his or her right to a judicial forum as a condition of employment or continued employment. The theory behind the bill was that it did not invalidate arbitration agreements, but rather made it illegal to require entry into an arbitration agreement as a condition of employment. However, Gov. Brown, at the end of his term, vetoed the bill, explaining, "Since this bill plainly violates federal law, I cannot sign this measure." In 2019, AB 51, a do-over of efforts to end mandatory arbitration, is currently placed in a legislative suspense file.
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.
Above: Video/recording: Comedian Harmonists Sing Quand Il Pleut (Stormy Weather/Ohne Dich). 1933.
News about our latest reality show, Stephanie Clifford a.k.a. Stormy Daniels a.k.a. Peggy Peterson v. Donald J. Trump a.k.a. David Dennison, and Essential Consultants, LLC, LASC Case No. BC696568 (filed March 6, 2018) is now splattered across the information superhighway. The lawsuit seeks declaratory relief that a non-disclosure agreement or "hush agreement" created to prevent adult film actress Stormy Daniels from communicating about her relationship with Donald J. Trump a.k.a. David Dennison, is unenforceable. A copy of the secret non-disclosure agreement is attached as Exhibit 1 to the very public complaint.
Meanwhile -- and this is where alternative dispute resolution enters into the picture -- President Trump's press secretary Sarah Huckabee Sanders, has announced that President Trump has already won in arbitration, thereby perhaps inadvertently admitting that President Trump, who did not sign the non-disclosure agreement, is the real party in interest seeking to shut up Ms. Daniels.
Here is my own somewhat random collection of issues relating to the enforceability of the arbitration agreement:
1. Is the agreement too ambiguous to be enforceable, because the parties are a shell corporation and/or Donald J. Trump (who is identified in a side agreement).
2. Does it matter that DJT did not sign the agreement, though there is a signature line for him?
3. Is the agreement enforceable, because there is an offer, an acceptance, consideration ($130,000), and a meeting of the minds?
4. Was there a meeting of the minds if the agreement, as DJT's press secretary apparently admitted, is for the benefit of DJT, yet he did not sign it?
5. Can DJT enforce the agreement as a third-party beneficiary?
6. Does DJT need to sue in his name to enforce the agreement on his behalf?
7. Did Ms. Daniels violate the non-disclosure agreement when she filed a public document attaching the NDA as Exhibit 1, rather than filing under seal?
8. How can a shell corporation make representations in the NDA on behalf of DJT, if the shell corporation is not his agent or attorney?
9. Did attorney Michael Cohen violate campaign election law by funneling a $130,000 payment to Ms. Daniels to help DJT win the presidential election, without declaring an in-kind campaign contribution?
10. Did attorney Michael Cohen violate rules of professional ethics by settling a legal dispute without a real client, or without the knowledge of the client, whose fingerprints are not on the agreement?
11. Has the NDA been compromised by public statements of the President's attorney and the President's press secretary, such that it cannot be enforced?
12. How do you feel about the use of NDAs to prevent someone from speaking about the sexual conduct of an important public figure? Is it important that the NDA was entered into just before the election, when DJT was not yet a public official, rather than after the election? Does it matter to you whether the person seeking to speak was a victim, or whether the conduct was consensual?
13. Is enforceability of this NDA, concerning the President, against public interest?
14. Is the million dollar liquidated damages provision in the NDA unenforceable as a forfeiture having no reasonable relationship to the actual injury? Has DJT ever been monetarily damaged by publicity?
15. If an award has been issued against Ms. Daniels in arbitration, how will it now be enforced? Does a petition to confirm the award in court lead to a public circus that will vitiate the benefit of such an award?
16. Are the private lives of important public officials fair game?
17. Was the original sin an effort to blackmail, making enforcement of the arbitration remedies with the help of a private arbitration process more acceptable?
Dear readers, please let us know if you spot additional issues worthy of consideration.
BONUS: The original Comedian Harmonists, who sing Stormy Weather in its French version in the recording above, were a German harmony ensemble active between 1928 and 1934. They are the subject of an entertaining 1997 German movie entitled The Harmonists, directed by Joseph Vilsmaier. Our blogger's grandfather, Eric Collin, was the second tenor in the group.
The Congressional Vote Furthers De-Regulation Of Wall Street.
In a NYT article entitled, "Consumer Bureau Loses Fight to Allow More Class-Action Suits," Jessica Silver-Greenberg reports about the October 24, 2017 vote in the Senate to roll back a rule written by the consumer bureau and previously intended to go into effect in 2019. The 51 to 50 Senate vote, in which VP Pence broke the tie, will allow financial institutions to continue to channel consumer complaints into arbitration. The roll-back, which is part of a wave of Republican efforts to deregulate, was favored by financial institutions, the Treasury Department, and the US Chamber of Commerce.
The US consumer bureau, consumer advocates, and plaintiff class-action attorneys have opposed the ubiquitous enforcement of arbitration clauses.
I posted on November 1, 2015 that Jessica Silver-Greenberg and Robert Gebeloff were authoring a series of special reports in the NYT critical about the use of arbitration clauses to avoid enforcement of plaintiff rights through class-action lawsuits.
NYT Article Describes Bank’s Use Of Arbitration With Customers Complaining About Creation Of Sham Accounts.
Above: Wells, Fargo & Co.'s Express Office, C Street, Virginia City. 1866. Library of Congress.
The NYT, which ran a series of articles in 2015 critical about the spread of arbitration, has published an article dated December 6, 2016, by Michael Corkery and Stacy Cowley entitled, “Wells Fargo Killing Sham Account Suits by Using Arbitration.” The thrust of the article is that Wells Fargo has effectively used arbitration clauses to divert customer lawsuits from the courts to arbitral forums.
It may at first seem surprising that Wells Fargo has been so successful at enforcing arbitration clauses against customers whose complaint is that they didn’t open the accounts in question with Wells Fargo. As explained by the article’s authors, the bank’s counterargument is, “The arbitration clauses included in the legitimate contracts customers signed to open bank accounts also cover disputes related to the false ones set up in their names.”
Is There A Meaningful Distinction Between Contract Enforcement AndContract Formation For Purposes Of FAA Preemption?
Kate Howard’s October 26, 2016 post about “Petitions To Watch” in Scotusblog notes that an arbitration case, Tamko Building Products, Inc. v. Hobbs, No. 15-1318, is up for consideration at the conference of October 28, 2016.
According to the petition, signed by Paul D. Clement, the issue presented is: “Whether a state court can evade the preemptive force of the Federal Arbitration Act by framing its refusal to enforce an arbitration agreement as a product of supposed defects in “contract formation” that would not prevent the formation of any other contract.”
Petitioner Tamko is trying to come within the rule of Concepcion, which held that courts must place arbitration agreements on “equal footing” with other contracts. In other words, the courts can’t place burdens on arbitration agreements that they couldn’t place on other agreements, absent clear congressional intent to do so.
Respondent frames the issue differently: “Does the Federal Arbitration Act preempt the lower court’s application of this rule1 to a case where the evidence suggests that the arbitration clause was not presented in a way that would give the consumer notice of its existence or the fact that keeping the product would supposedly constitute agreement to arbitration?”
1In context, “this rule” means, “unless a party has actual knowledge of the contract terms, the party’s conduct does not signify assent unless there was reasonable notice of the terms and the conduct that would be deemed to manifest assent to them.”
Attorney General Of Minnesota Say No, Joining Other Political Figures.
On October 4, 2016, Adam Betz reported for the Star Tribune that Minnesota’s Attorney General Lori Swanson opposes Wells Fargo’s use of arbitration clauses to require its customers to arbitrate claims concerning unauthorized accounts opened by Wells Fargo. And the LAT reports that on October 3, Sen. Sherrod Brown (Dem. – Ohio) introduced legislation in Congress to prevent Wells Fargo from invoking arbitration in contracts with customers.
The Maryland Judiciary has commissioned research to be conducted by independent researchers on the efficacy of mediation with small claims-type cases. The research claims to be “the only research in the country that compares the attitudes and changes in attitudes of participants who went through ADR to an equivalent comparison group who went through the standard court process.” The research also examines the long-term and short term effects of employing different mediation strategies, such as reflecting back the emotions and interests of the participants, and eliciting solutions, offering solutions, and caucusing.
The research showed significant benefits for those who went through the ADR process. Participants were more likely to resolve all their issues. They had an increase in their rating of their level of responsibility for the situation. Participants were more likely to be satisfied with the judicial system than others. They were more likely to emerge with a better attitude toward the other side, and with a higher satisfaction with the outcome.
The study also found interesting results regarding the strategies employed by mediators. In the short run, reflective strategies seemed to make participants feel more positive, though such strategies seemed not to have a statistically significant effect in any positive or negative outcomes. Frequent caucusing correlated with lower satisfaction, and with a higher likelihood of return to court. Also, “eliciting strategies” – asking participants to suggest solutions, summarizing the solutions, and asking them how the solutions would work for them – were strategies associated with a lower rate of return to court in the long run. Being directive by offering solutions was a less successful strategy than eliciting solutions.
Query whether reflecting back the emotions of participants, keeping them all in the same room without caucusing, and avoiding evaluation and directive solutions will work with equal success in more complex mediations.
