California Mediation and Arbitration

Recommended Reading: Article On Participation Waivers In Daily Journal

A "Participation Waiver" Is Not Exactly The Same As A Waiver Of The Right To Sue Or A Bar Against Bringing A Class Action.

        Ari J. Stiller, an attorney with Kinglsey & Kingsley, has an article in the June 26, 2019 issue of the Daily Journal entitled, "Participation waivers test Federal Arbitration Act's limits." 

         As Stiller explains, "So-called 'participation' waivers don't just try to bar employees from bringing a class or collective action in arbitration; they bar participating in such an action that someone else brings, regardless of the forum." Stiller argues that this is a bridge too far, and that once a lawsuit is filed by a party who is not bound by an arbitration agreement, the procedural rules applicable to court should apply. "Courts should not enforce such [participation] waivers outside of arbitration," argues Stiller, "to deny discovery or class certification, and certainly not to prevent workers from participating in a classwide recovery of unpaid wages."

        I asked Stiller whether there are cases specifically addressing "participation waivers" and he replied that he did not know of any, adding: "We have litigated this issue several times recently, in the context of employers trying to block discovery as to individuals who signed participation waivers and an employer trying to strike class allegations from a complaint." So this issue is a live one, even if published opinions have not yet confronted the enforceability of "participation waivers."

Miscellaneous: We've Got Two Recent Articles In The Daily Journal

Justice Bedsworth On Civility; SCOTUS On The Takings Clause.

        I've published two recent articles that have nothing to do with California Mediation and Arbitration.

        The June 18, 2019 Daily Journal published my article, "4th District Court of Appeal Justice William Bedsworth on civility." Justice Bedsworth wrote an opinion worth reading, Lasalle v. Vogel, No. G055381 (4/3  6/11/19)  holding that attorneys have a duty to cooperate during litigation, based on Cal. Code of Civ. Proc. section 583.130. According to Justice Bedsworth, this is more than an ethical duty; it is a policy, and it is law.

        The June 25, 2019 Daily Journal published my article, "Opening the Federal Courthouse door to takings claims." This is about the recent SCOTUS case, Knick v. Township of Scott, holding that a 5th Amendment Takings Clause claim may be brought in federal court under 42 U.S.C. section 1983 at the time of the taking, without having to wait for a denial of just compensation in state court. The case is unusual in two respects. First, it overturns a 35-year old SCOTUS case, Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which had held that a case was not ripe for the federal courts until there had been a denial of a state-law remedy. Second, the case is split along political lines -- and what is interesting here, is that it is the conservative majority opening the courthouse to constitutional claims.

        Regrettably, the Daily Journal has a paywall, but you can read the articles if you have an electronic or paper subscription -- and if the subjects interest you.

 

Reviews: We the Corporations: How American Businesses Won Their Civil Rights

Marc Alexander (This Blogger) Has Reviewed The Book For California Litigation.

        In the latest issue of California Litigation, Vol. 32, No. 1 (2019), p. 25, I've reviewed Adam Winkler's We the Corporations: How American Businesses Won Their Civil Rights. You can read the review, which is republished with the permission of California Litigation, by clicking here.

Book Reviews: Richard L. Hasen's "The Justice Of Contradictions: Antonin Scalia and the Politics of Disruption"

Marc's Review Of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, Has Been Published in California Litigation.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Prof. Richard L. Hasen's book, The Justice of Contradictions: Antonin Scalia and the  Politics of Disruption, is made available by clicking here.

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.

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.

Review: Creative Mediation Solutions

Mediator Paul Fisher's Article Describing Varieties of Mediation Is Available On-Line.

        A classic summary of "Creative Mediation Options" (August 2000) authored by California mediator Paul Fisher is available on-line at this link.  Paul Fisher describes, and summarizes advantages and disadvantages of: baseball mediation, golf mediation, pocket golf mediation, binding mediation [perhaps an oxymoron], high-low mediation, mediation/arbitration, arbitration/mediation, and mini-trial.

Book Reviews: Jeffrey Rosen's American Prophet: Louis D. Brandeis

Marc's Review of Jeffrey Rosen's American Prophet: Louis D. Brandeis, Has Been Published in California Litigation.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Jeffrey Rosen's book about Justice Louis D. Brandeis and his thought is made available here.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Jeffrey Rosen's book about Justice Louis D. Brandeis and his thought is made available here.

Articles: The Widespread Use of Workplace Arbitration Among America's Top 100 Companies

Most Of The Top Companies Have Arbitration Clauses, And More Than Half Have Class Action Waivers.

    Prof. Imre Szalai, Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law, has published an article entitled "The Widespread Use of Workplace Arbitration Among America's Top 100 Companies."   

    Prof. Szalai summarizes his key findings:

• 80 of the top 100 largest companies in America, including subsidiaries or related affiliates, have used arbitration agreements in connection with workplace-related disputes since 2010.
• Of the 80 companies with arbitration agreements in the workplace, 39 use arbitration clauses containing class waivers.
• Over half of the companies in the Fortune 100 appear to have imposed forced arbitration clauses on workers; such workers did not have a meaningful choice to accept or reject the arbitration clause.

    Those conclusions present questions for us:  if 80 of the top 100 companies use arbitration agreements in connection with workplace-related disputes, why don't 20 of the companies use arbitration agreements?  If 39 of 80 companies use arbitration clauses containing class waivers, why don't 41?  And if over half of the companies have imposed forced arbitration clauses on workers, why haven't nearly half not done so?  Have the companies that don't rely on arbitration clauses, class action waivers, and binding arbitration made a conscious policy decision, or are they simply behind the curve set by other employers?

Reviews: Two Articles In The Economist Are Critical Of Arbitration In The United States

Emptying The Courtrooms . . . 

    The January 27, 2018 edition of The Economist has two short articles critical of arbitration in the US:  "Shut out by the small print" (p. 10) and "Kept out of the courthouse" (p. 61).  The articles are somewhat duplicative -- here are a few of the highlights:

• In the early 1990s, 2% of non-unionized employees were bound by mandatory arbitration agreements - now it is more than half.
• Arbitration was originally designed for commercial disputes, and works best when power is balanced between the two sides.
• In employee/employer disputes, and business/consumer disputes, power tends to tip in favor of the employer and the corporation.,
• Employers tend to have better outcomes in arbitration than in court lawsuits.
• Given the political climate, legislative attempts to limit arbitration seem unlikely.
• "The popularity of arbitration is a sign of how very costly and technical the courts have become, says Andrew Pincus, a partner at Mayer Brown, a law firm, who advises companies on such procedures."
• Consent to arbitration is "a fantasy of consent, rather than the real thing," says Katherine Stone at UCLA.
• Arbitrators in employment disputes may be especially reluctant to award punitive damages, out of concern that they will never arbitrate another employment dispute.
• The confidential aspects of arbitration and lack of transparency may silence victims.
• "In the wake of the #MeToo movement, legislators are now taking aim at arbitration in harassment cases."

        HAT TIP to my colleague Mike Hensley who brought the two articles to my attention today.