Updated July 24, 2008
Paul Dubow Arbitration Case Report 2005 to 2008
ARBITRATION
Case List By Name/Link to Review
Advantage Medical Services LLC v Hoffman (2008) (Disclosure)
Aral v. EarthLink, Inc. (2005) (Forum Selection)
Baker v. Osborne Development Corp. (2007) (Arbitrability)
Baker v. Osborne Development Corp. (2007) (Unconscionability)
Berg v Traylor (2007) (Minors)
Boghos v Certain Underwriters at Lloyds of London (2005) (Forum Fees)
Boghos v. Certain Underwriters at Lloyds of London (2005) (Service of Suit Clause)
Boucher v. Alliance Title Company, Inc. (2005) (Nonsignatories)
Brodke v Alphatec Spine, Inc. (2008) (Petition to Compel Arbitration)
Bruni v Didion (2008) (Arbitrability)
Bruni v Didion (2008) (Unconscionability)
Buckeye Check Cashing, Inc. v. Cardegna (2006) (Arbitrability)
Cable Connection, Inc. v. DirecTV, Inc. (2006) (Class Action Permitted)
Cable Connection, Inc. v. DirecTV, Inc. (2006) (Errors of Law)
Cable Connection, Inc. v. DirecTV, Inc. (2006) (Refusal to Admit Evidence)
Cable Connection, Inc. v. DirecTV, Inc. (2006) (Severance)
Comedy Club, Inc. v. Improv West Associates (9th Cir 2007) (Injunctive Relief)
Comedy Club, Inc. v. Improv West Associates (9th Cir 2007) (Manifest Disregard of the Law)
Comedy Club, Inc. v. Improv West Associates (9th Cir 2007) (Nonsignatories)
Comer v. Micor, Inc. (9th Cir 2006) (Nonsignatories)
Credit Suisse First Boston Corp. v. Grunwald (9th Cir 2005) (Ethics Standards)
Credit Suisse First Boston Corp. v. Grunwald (9th Cir. 2005) (Preemption)
Cronus Investments, Inc. v. Concierge Services (2005) (Consolidation in
Litigation)
Cummings v. Future Nissan (2005) (Appeal to Second Arbitrator)
Cummings v. Future Nissan (2005) (Waiver of Issue)
Discover Bank v. Superior Court (2005) (Class Action Waiver)
Discover Bank v. Superior Court (2005) (Preemption)
Ervin Cohen Jessup LLP v. Kassel (2007) (Attorney/Client Fee Arbitration)
Gray Cary Ware & Freidenreich v Vigilant Insurance Co. (2004) (Cumis Counsel)
Gueyffier v. Ann Summers, Ltd. (2008) (Exceeding Powers)
Gueyffier v. Ann Summers, Ltd. (2008) (Preemption)
Gueyffier v. Ann Summers, Ltd. (2008) (Vacatur - International)
Guisenov v. Burns (2006) (Disclosure)
Guisenov v. Burns (2006) (Waiver of Appeal)
Hall Street Associates Inc v Mattel Inc (2008) (Errors of Law)
Higgins v. Superior Court (2006) (Unconscionability)
Hotels Nevada v. L.A. Pacific Center, Inc. (2006) (Fraud in the Execution)
Independent Association of Mailbox Center Owners, Inc. v. Superior Court (2005)
(Forum Fees)
Independent Association of Mailbox Center Owners, Inc. v. Superior Court (2005)
(Remedy Restrictions)
Independent Association of Mailbox Center Owners, Inc. v. Superior Court (2005)
(Unconscionability)
Jakks Pacific Inc v Superior Court (2008) (Disclosure)
Klussman v. Cross Country Bank (2005) (Injunctive Relief)
Lee v. Southern California University for Professional Studies (2007) (Injunctive Relief)
Lee v. Southern California University for Professional Studies (2007) (Nonsignatories)
Long v Century Indemnity Co. (2008) (Cumis Counsel)
Luce Forward Hamilton & Scripps LLP v Koch (2008) (Disclosure)
Martinez v Master Protection Corp (2004) (Court Appointed Arbitrator)
Morgan Phillips, Inc. v. JAMS/Endispute (2006) (Immunity)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Arbitrability)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Forum Fees)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Forum Selection)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Repeat Players)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Severance)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Unconscionability)
Nagrampa v. Mailcoups, Inc. (9th Cir 2006) (Waiver of Litigation)
Nguyen v. Tran (2007) (Nonsignatories)
Ontiveros v. DHL Express (USA), Inc. (2008) (Arbitrability)
Ontiveros v. DHL Express (USA) Inc. (2008) (Discovery)
Ontiveros v. DHL Express (USA), Inc. (2008) (Forum Fees)
Ontiveros v. DHL Express (USA), Inc. (2008) (Repeat Players)
Ontiveros v. DHL Express (USA) Inc. (2008) (Severance)
Ovitz v. Schulman (2005) (Disclosure)
Ovitz v. Schulman (2005) (Preemption)
Preston v Ferrer (2008) (Arbitrability)
Preston v Ferrer (2008) (Preemption)
Reigelsperger v. Siller (2007) (Agreement to Arbitrate)
Reigelsperger v. Siller (2007) (Medical Services Agreement)
Rodriguez v. American Technologies, Inc. (2006) (Consolidation in Litigation)
Rodriguez v Blue Cross of California (2008) (Medical Services Agreement)
Roehl v. Ritchie (2007) (Award Correction)
Sanford v. Member Works, Inc. (9th Cir 2007) (Appeal - Federal)
Sanford v. Member Works, Inc. (9th Cir 2007) (Arbitrability)
Schatz v. Allen Matkins Leek Gamble & Mallory LLP (2007) (Attorney/Client Fee Arbitration)
Shepard v. Edward Mackay Enterprises, Inc. (2007) (Preemption)
Shroyer v New Cingular Wireless Services, Inc. (9th Cir 2007) (Class Action Waiver)
Shroyer v. New Cingular Wireless Services, Inc. (9th Cir 2007) (Preemption)
Schoenduve Corporation v. Lucent Technologies, Inc. (9th Cir 2006)
Titolo v. Cano (2007) (Medical Services Agreement)
Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) (Nonsignatories)
Veliz v. Cintas Corp. (ND Cal 2005) (Forum Fees)
Veliz v. Cintas Corp. (ND Cal 2005) (Venue)
Woolls v. Superior Court (2005) (Preemption)
Woolls v. Superior Court (2005) (Residential Contracts)
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Case List By Subject/Full Review
Agreement to Arbitrate
Reigelsperger v. Siller, 40 Cal 4th 574, 53 Cal Rptr 3d 887 (2007)-An agreement to arbitrate that pertains to all transactions “now or in the future” applies to future transactions even if the parties did not contemplate future transactions at the time that the agreement was executed. This does not mean that the agreement binds the parties in perpetuity. Arbitration agreements that do not specify a term of duration are terminable at will after a reasonable time has elapsed.
Appeal-Federal Court
Sanford v. Member Works, Inc., 483 F 3d 956, 961 (9th Cir 2007)-Defendant moved to compel arbitration of plaintiff’s class action complaint. The motion was granted, but the court stated that if the arbitration were not completed within twelve months, it would dismiss the case. After the arbitration was completed within the requisite period, plaintiff moved to vacate, continuing to argue that the dispute was not arbitrable. The motion was denied and plaintiff appealed. Defendant argued that plaintiff had waived her right to appeal because she should have appealed from the initial ruling compelling arbitration, citing Section 16(a)(3) of the FAA which provides for an immediate appeal of a “final decision with respect to an arbitration”. The Ninth Circuit rejected this argument. The order compelling arbitration was not a final decision. An order granting a motion to compel arbitration and dismissing the action without prejudice constitutes an appealable final decision. An order compelling arbitration and staying the case is not immediately appealable. Here, there was no final decision because the court did not dismiss plaintiff’s claim and instead stated that it would terminate the action if the arbitration were not completed within twelve months.
Appeal to Second Arbitrator
Cummings v. Future Nissan, 128 Cal App 4th 321, 27 Cal Rptr. 3d 10, n. 4 (2005)-A second level of review, even if it imports judicial standards for review of a civil judgment on appeal and therefore erodes the traditional informality of arbitration is not invalid so long as there is no dollar amount threshold for invoking it (which would make it almost exclusively an employer remedy). The Court also held, at p. 331, that the second arbitrator was not limited by the holding in Moncharsh v Heily & Blasé, 3 Cal 4th 1 (1992) when ruling on the appeal.
Arbitrability
Buckeye Check Cashing, Inc. v. Cardegna, 546 US 440, 126 S.Ct. 1204, 163 L.Ed 2d 1038 (2006)-A decision by the Florida Supreme Court denying the arbitration of a dispute arising out of a contract that was alleged to be void because it was usurious was reversed. Previous Supreme Court rulings in Prima Paint v Conklin and Southland v. Keating established three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, then the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts. Thus, because the plaintiffs challenged the agreement but not the arbitration clause specifically, the arbitration provisions are enforceable apart from the remainder of the contract. This decision effectively overruled Hotels-Nevada LLC v Bridge Banc LLC, 130 Cal App 4th 1431, 30 Cal Rptr 3d 903 (2005).
Nagrampa v. Mailcoups,Inc., 2006 US App LEXIS 29687(9th Cir 2006)-When the crux of the complaint is not the invalidity of the contract as a whole, but rather the arbitration provision itself, then the court, not the arbitrator, must decide whether the arbitration clause is invalid and unenforceable.
Sanford v. Member Works, Inc., 483 F 3d 956, 963-4 (9th Cir 2007)-Plaintiff purchased a set of fitness tapes in response to a television advertisement and when the tapes were sent to her, they were accompanied by a membership in a program operated by defendant that provided discounts to program members. The membership material also contained a contract with an arbitration clause. Plaintiff’s credit card was charged $72. She filed a class action alleging violation of 39 USC 3009, which makes the mailing of unordered merchandise an unfair trade practice. Defendant moved to compel arbitration. Plaintiff argued that no contract was formed. The District Court ruled that since plaintiff challenged the contract as a whole, the decision whether there was a valid contract belonged to the arbitrator. Plaintiff’s motion to vacate the arbitrator’s award of $72 was denied by the District Court but that decision was reversed by the Ninth Circuit. Issues regarding the validity or enforcement of a putative contract mandating arbitration should be referred to an arbitrator, but challenges to the existence of a contract as a whole must be determined by the court prior to ordering arbitration.
Baker v. Osborne Development Corp., 159 Cal App 4th 884, 893-4, 71 Cal Rptr 3d 854 (2007)-The arbitration clause in this contract provided that all issues concerning enforceability or validity of the contract would be decided by the arbitrator. But the same section of the agreement contained a severability provision in the event that “any provision of this arbitration agreement shall be determined by the arbitrator or by any court to be unenforceable”. Plaintiffs opposed defendant’s motion to compel arbitration on the ground that the contract was unconscionable. The trial court found the issue of who decides arbitrability to be ambiguous and denied the motion to compel. The appellate court agreed. Although one provision of the arbitration agreement stated that issues of enforceability and voidability were to be decided by the arbitrator, another provision indicated that the court might find a provision to be unenforceable. Thus, the arbitration agreement did not clearly and unmistakably reserve to the arbitrator the issue of whether the arbitration agreement was enforceable.
Preston v Ferrer, 128 S. Ct 978, 169 L.E. 2d 917, 2008 US
