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Update and Discussion on Legal and Practical Issues
Issues surrounding unconscionability and severance are commonplace in motions to compel arbitration, especially in California. Under California Civil Code section 1670.5, a court has three options when presented with an...more
A California appellate court recently denied a motion to compel arbitration, finding the agreement unconscionable in part because it (1) applied to all claims rather than just those arising from employment, (2) was unlimited...more
The U.S. Court of Appeals for the Ninth Circuit recently reversed a district court’s ruling, which had denied a motion to compel arbitration of Opportunity Financial (OppFi) on the basis that the arbitration clause was...more
Noting the court was deciding, as a matter of first impression, “what a party must do to specifically challenge a delegation provision and what a court may consider when evaluating this challenge,” the Ninth Circuit Court of...more
In Payne v. Savannah College of Art and Design Inc., the Eleventh Circuit Court of Appeals affirmed a district court order denying a motion to compel arbitration of plaintiff Isaac Payne’s discrimination-based claims. The...more
Cincinnati v. PE Alms Hill Realty, LLC, 1st Dist. Hamilton, 2023-Ohio-2784. In this appeal, the First Appellate District affirmed the trial court’s decision to grant commercial lenders summary judgment on their breach of...more
Employers seeking to move workplace claims from the courthouse to arbitration received some good news Friday from the U.S. Supreme Court. If a trial court denies a party’s request to compel arbitration, the court must pause...more
Employers that face lawsuits from employees often seek to move such claims from the courthouse to arbitration. But what happens if the trial court refuses to compel arbitration and the employer appeals the decision? Should...more
An employer’s arbitration agreement was both procedurally and substantively unconscionable, a California appellate panel determined, affirming a trial court’s denial of an employer’s motion to compel arbitration....more
The First Circuit vacated an order compelling arbitration after finding that the arbitrator selection clause was unconscionable. The court nevertheless remanded the case to the district court to determine if the selection...more
The U.S. District Court for the Southern District of Texas recently compelled arbitration against insurers but not brokers related to a commercial insurance dispute....more
A former executive and in-house lawyer for the Miami Heat basketball franchise sued the team for allegedly violating her rights under the Family and Medical Leave Act when she was terminated from her employment. ...more
While much of the world came to a halt in response to the coronavirus pandemic, the California Courts of Appeal were busy issuing important decisions on the enforceability of arbitration clauses. As the economy starts to...more
The U.S. District Court for the Southern District of Texas recently compelled arbitration despite an insured’s claim that the operative arbitration clause was unconscionable because it required the arbitration panel to...more
Of the state law defenses, unconscionability is the most often used and most effective legal justification for invalidating arbitration agreements. As a creature of state common law and state versions of the Uniform...more
The Eight Circuit has rejected a plaintiff’s claim that an arbitration clause in a retainer agreement she signed with a law firm after receiving a call from a purported agent of the firm informing her of a purported...more
The U.S. District Court for the Northern District of Texas compelled arbitration in a putative Fair Labor Standards Act class action based on language in a “notice to employees” that put the plaintiffs on notice that they...more
The Southern District of New York granted a motion to compel arbitration of an employment dispute between the petitioners and the respondent. The petitioners also filed a motion to dismiss or stay a concurrent proceeding that...more
OTO, L.L.C. v. Kho, 8 Cal. 5th 111, 251 Cal. Rptr. 3d 714 (2019) - Summary: Mandatory arbitration agreement may be unenforceable against employee wage claims if agreement requires employee to forego Labor Commissioner...more
Concluding that TWC Dealer Group, Inc.’s arbitration agreements were both procedurally and substantively unconscionable, California’s First Appellate District’s recent decision highlights certain contractual terms and...more
On August 29, 2019, the California Supreme Court held in OTO, L.L.C. v. Kho, S244630, that a mandatory arbitration agreement may be unenforceable against employee wage claims if it requires the employee to forego the “Berman”...more
A district court has granted a motion to compel arbitration based on an arbitration clause in an agreement sent via text message and agreed to via a reply text. ...more
The U.S. District Court for the Northern District of Alabama has compelled arbitration despite a former employee’s claim that the arbitration clause in the policy at issue was unconscionable under the circumstances related to...more
Two California Courts of Appeal came to two different conclusions on motions to compel arbitration on the same day last week (April 10), again demonstrating the care that must be taken in drafting and presenting arbitration...more
This case involves a dispute between American Family Life Assurance Company of Columbus (“Aflac”) and a group of independent contractors (“associates”), arising out of alleged misrepresentations by Aflac. Pursuant to their...more