California Mediation and Arbitration

Arbitration/Employment/Class Actions/Pending Cases: Office Of The Solicitor General Changes Its Position On NLRB v. Murpy Oil, USA

The Issue:  Do Employee Agreements To Waive Class Actions And Arbitrate Violate The Right Of Employees To Engage In Collective Action Under The National Labor Relations Act?

        Amy Howe reports on June 19, 2017, in SCOTUSBlog, that the Office of the Solicitor General, after the change of administration, has done a volte-face in a pending Supreme Court Case, National Labor Relations Board v. Murphy Oil USA.  On behalf of the NLRB, the Office of the Solicitor General had previously asked SCOTUS to review and overturn a decision that had allowed the arbitration provision and class-action waiver in employer-employee agreements.  The Solicitor General had argued that such provisions violate the National Labor Relations Act, because it protects the rights of employees to act collectively.   The Acting Solicitor General, Jeffrey Wall, has now  announced, "since the change in administration, the Office reconsidered the issue and reached the opposite conclusion."  The upshot is that the NLRB will likely file its own pro-employee brief, without the support of the Solicitor General.  

        While under normal circumstances it is unusual for the Office of the Solicitor General to change its position just because the administration has changed, can anyone be very surprised?

         See my posts of November 3, 2016  and January 17, 2017, referencing the Murphy Oil case.

Pending Cases: Southern Insurance Company v. Workers Compensation Appeals Board Is Now Published

This Case Annulled Workers' Compensation Appeals Board Decision Because Rescission Issue Remained "Factually Open And Unresolved" By Arbitrator.

     I posted to this blog about Southern Insurance Company v. Workers' Compensation Appeals Board, et al., B278412 (2/2  5/10/17) (Chavez, Hoffstadt, Goodman) on May 16, 2017, at which time the case was unpublished.  I can now report that the case was certified for publication on May 22, 2017.

 

PAGA, Severability: Second District, Division 4 Reposts Montano PAGA Opinion Upon Lifting Of Bankruptcy Stay

Two Years Later . . .

    On January 7, 2015, we posted about Montano v. The Wet Seal Retail, Inc., B244107 (2^nd Dist. Div. 4 1/13/15) (certified for pub.). This is a Private Attorneys General Act case following the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014), that waiver of the employee's right to litigate representative claims is unenforceable.  Two years later, we can now report that as of 1/13/17, the case was reposted upon the lifting of a bankruptcy stay, with a slight modification made on 1/13/15 deleting footnote 7.

Pending Cases: Hernandez v. Ross, A PAGA Arbitration Case, Is Now Published

Employer Cannot Compel Employee To Arbitrate Individual Aspects Of PAGA Claim While Maintaining Representative Claim In Court.

    We blogged about Hernandez v. Ross, E064026 (4/2 1/3/17) on December 8, 2016. Hernandez is one more California case holding that a court cannot split a representative PAGA claim into arbitrable and non arbitrable parts. We can now report that the case was ordered to be published on January 3, 2017.

Arbitration, FAA, Pending Cases: SCOTUS Grants Cert Petition In Kindred Nursing Centers Limited Partnership v. Clark

Petitioner And Respondent Frame Issue Quite Differently.

     I wrote about Kindred Nursing Centers Limited Partnership v. Clark in an August 5, 2016 post, stating that the nursing company petitioning from the Kentucky Supreme Court to SCOTUS presented the issue thusly:

”Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.”

     I can now report that the Supreme Court granted Kindred Nursing Center’s petition for a writ of certiorari on October 28, 2016, and also add that Respondent Clark frames the issue rather differently:

“Whether the Kentucky Supreme Court’s routine application of interpretive principles to an instrument of Agency, e.g., a power-of-attorney, is preempted by the Federal Arbitration Act.”

FAA, Pending Cases: Tamko Building Products v. Hobbs Cert Petition Presents FAA Preemption Issue To SCOTUS

Is There A Meaningful Distinction Between Contract Enforcement And Contract 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?”

1  _{In 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.”}

Pending Cases, Federal Arbitration Act: Nursing Homes Petition SCOTUS

Can Kentucky Require That Nursing Home Resident’s Power of Attorney Reference Arbitration In Order To Effectively Bind Attorneys-In-Fact To Arbitrate Wrongful Death Cases? – Or Does Federal Arbitration Act  Preempt State Requirement?

     Above:  Nurse training.  Nov. 1942.  Fritz Henle, photographer.  Library of Congress.

     At the beginning of the week, we reported that SCOTUSBlog’s “Petition of the Day” involved an arbitration/FAA/preemption/standard of review issue.  In fact, the case, R.J. Reynolds Co. v. Maryland, is the subject of our immediately preceding post.  Now, just a few days later, another case involving arbitration/FAA/federal preemption is the subject of a writ of certiorari to SCOTUS.

     The case is Kindred Nursing Centers Limited Partnership v. Clark et al, No. 16-32.

     The question presented by the Petition is:

”Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.”

     The redoubtable Andrew J. Pincus of Mayer Brown is listed as Counsel of Record.  Mr. Pincus led AT&T to victory in AT & T v. Concepcion, 563 U.S. 333 (2011), the landmark case holding the FAA preempts state laws prohibiting contracts from disallowing class-wide arbitration,

Pending Cases, Federal Arbitration Act, Standard of Review: Tobacco Companies Petition SCOTUS

     SCOTUSBlog’s “Petition of the Day” Presents Arbitration Issues.

     “The Jolly Smoker.”  Currier & Ives.  c1880.  Library of Congress.

     On July 29, 2016, Kate Howard reported on the “Petition of the Day” in R.J. Reynolds Co. v. Maryland, 15-1537, presenting the issues:

“(1) Whether, when the Federal Arbitration Act (‘FAA’) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state-law judicial-review standards; and (2) whether, when arbitrators have jurisdiction to resolve a contract dispute, the FAA prohibits a court from holding that they ‘exceeded their powers’ based on the court’s conclusion that their contract interpretation is ‘plainly’ and ‘irrationally’ incorrect on the merits.”

     Stay tuned . . .

Pending Cases/Unconscionability: Magno v. The College Network, Inc. Is Ordered Published

Case Held That Arbitration Agreement Between Indiana Based Distance-Learning Partnership And California Licensed Vocational Nurses Was Unconscionable.

      We can report that on July 8, 2016, Magno v. The College Network, Inc., D067687 (4/1 6/14/16) (McConnell, Nares, O’Rourke), a case we posted about on June 22, 2016, was ordered for publication.  Perhaps the most notable part of the case is the weight that the Court gave to an Indiana forum selection clause for binding arbitration in determining that substantive unconscionability existed.  Also, there was an absence of evidence that the plaintiffs, young nursing students, knew about the forum selection clause.

Pending Cases: Baxter v. Bock Is Now Partially Published

Case Involved The Mandatory Fee Arbitration Act.

     We just posted on Baxter v. Bock on May 22, 2016, a case involving the MFAA and an acknowledged arbitrator’s error that was not a basis for vacating an award, as well as disclosure requirements.  We can now report that the case is partially published as of May 24, 2016.