Arbitration

Like several other decisions, this one concludes that later U.S. Supreme Court opinions have not overruled or cast doubt on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348.  It remains true that an employer cannot compel an employee to arbitrate a PAGA claim and that the FAA does not preempt that rule. Read More

Following Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 1407, this decision holds that at least when its application would change a fundamental attribute of arbitration, the construction against drafter rule is preempted by the FAA.  So, in this case, an ambiguity introduced by the Spanish translation's mistaken reference to nonbinding, instead of binding, arbitration could not be resolved against… Read More

The trial court properly denied defendant's motion to vacate the arbitration award on the ground of manifest disregard of the law.  The arbitrator properly reconsidered his initial award and reentered an award based on other grounds after defendant's criminal conviction for fraud was vacated for retrial.  The arbitrator properly drew negative inferences from defendant's invoking the Fifth Amendment in response… Read More

This decision states that an arbitrator may not consider an Anti-SLAPP motion to strike, but it finds that the arbitrator's error in granting such a motion was harmless.  At the second stage of the Anti-SLAPP analysis, the arbitrator had to consider the merits of the defendant's cross-complaint.  The arbitrator found that the litigation privilege (Civ. Code 47(b)) barred the cross-complaint. … Read More

Calling for en banc review of Monster Energy Co. v. City Beverages, LLC (9th Cir. 2019) 940 F.3d 1130, this decision refuses to extend Monster Energy's holding.  Disclosure is required only if the arbitrator has a non-trivial ownership interest in JAMS (or other arbitration administrator) and only if JAMS (or other) has non-trivial business dealings with the opposing party--not the… Read More

Plaintiff's subcontract with defendant, the prime contractor, incorporated by reference the 151-page prime contract between defendant and the owner.  The prime contract contained an arbitration clause.  The subcontract did not.  This decision affirms an order denying arbitration.  The incorporation of the prime contract was in a clause referring only to the subcontractor's assuming the prime contractor's obligations to the owner. … Read More

Under 9 USC 4, the district court must hold a summary jury trial if a party timely demands a jury and the district court finds, on a motion to compel arbitration, that there are disputed issues of fact as to whether the plaintiff entered into or is otherwise bound by an arbitration clause.  Here, the district court so found, but… Read More

Plaintiff hired E to sell its cyptocurrency assets for cash.  E did so using defendant's website.  The proceeds of sale were stolen from the website allegedly because defendant failed to implement elemental security measures.  This decision holds that the trial court did not err in denying defendant's motion to compel arbitration based on its terms of service to which E… Read More

The party moving to compel arbitration bears the burden of proving that the parties entered into an arbitration agreement.  Here, plaintiff employee denied that she had electronically signed the arbitration agreement during the employment onboarding procedure that defendant implemented on taking over the acute care facility at which plaintiff worked.  One way to authenticate an electronic signature is to show… Read More

On behalf of a putative class of prescription drug buyers, plaintiff alleged that Rite Aid reported inflated "usual and customary" drug prices to the pharmacy benefits managers which transmitted the inflated figures to plaintiffs' health insurers, causing the plaintiffs to pay higher than proper deductibles for the drugs.  This decision affirms an order denying Rite Aid's motion to compel arbitration. … Read More