“When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”  -- Indiana poet James Whitcomb Riley (1849–1916)

1. Background

The United States Court of Appeals for the Ninth Circuit issued two important decisions in California and Oregon cases, on August 27, 2014.  Both decisions were issued by Judge William A. Fletcher.  

Between 2003 and 2009, cases were filed against FedEx in approximately 40 states.  The Judicial Panel on Multidistrict Litigation consolidated these cases for multidistrict litigation (“MDL”) proceedings in the District Court for the Northern District of Indiana (“the MDL Court”).  Plaintiffs in these cases moved for summary judgment and sought to establish their status as employees.  The MDL Court denied all of Plaintiffs’ Motions for Summary Judgment and held that Plaintiffs were independent contractors as a matter of law. 

2. Alexander decision

The California case, Alexander v. FedEx Ground Package System, Inc. dba FedEx Home Delivery (Case No. 12-17509), was brought by 2300 full-time delivery truck drivers who worked for FedEx Ground and FedEx Home Delivery between 2000 and 2007.  

Upon review of the “right to control” test previously articulated by the court in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal.1989), the appellate court found that California FedEx drivers were employees, not independent contractors, despite the OA with FedEx, which seemed to indicate the contrary.

Specifically, the court found that the California FedEx drivers were employees under the California “right to control” test because FedEx control of: (1) the appearance (i.e., clothing and grooming) of its employees as well as their vehicles (i.e., paint color, signage, shelving to certain specifications); (2) the times in which its drivers work (i.e.,  structuring of workloads to ensure that each driver works approximately 9.5 to 11 hours a day; and (3) delivery of packages via negotiating delivery windows with FedEx customers, on behalf of drivers.  

The appellate court also considered “secondary factors” in reaching this determination: (1) the full integration of the drivers work into FedEx’s operation; (2) the supervision of FedEx managers; (3) the fact that no skill is required in connection with the occupation of driving for FedEx; (4) the length of time – one to three years – of the employment agreement with FedEx; and (5) the importance of drivers’ work to FedEx’s business.  

Conversely, the appellate court was not convinced by FedEx’s argument, which was based on the D.C. Circuit’s decision in FedEx Home Delivery v. National Labor Relations Board, 563 F.3d 492 (D.C. Cir. 2009), that drivers have “entrepreneurial opportunities” that most employees do not have (i.e., the right to hire a third-party to assist with delivery).  It downplayed the importance of the OA between drivers and FedEx and held that the belief of the parties as to their relationship is not controlling if facts indicate another type of relationship exists.  

3. Slayman decision

The Oregon case, Slayman v. FedEx Ground Package System, Inc. dba FedEx Home Delivery, Inc. (Case No. 12-35559), involves 363 full-time delivery truck drivers who worked for FedEx Ground and FedEx Home Delivery from 1999 through 2009.  Slayman involved an appeal of two consolidated class actions.  

The panel also found that Oregon drivers in the Slayman matter were employees under Oregon’s  “right to control” test, as articulated in Stamp v. Dep’t of Consumer & Business Services, 9 P.3d 729, 731 (Or. Ct. App. 2000), for essentially the same reasons as articulated above.  

It additionally applied considerations specific to Oregon’s “economic realities” test, articulated by the court in Cejas Commercial Interiors, Inc. v. Torres-Lizama, 316 P.3d 389, 394 (Or. Ct. App. 2013).  It held that drivers were employees, rather than independent contractors, for the following reasons: (1) FedEx controls the terms and conditions of Plaintiffs’ employment; (2) FedEx drivers are a permanent and important part of FedEx’s business; (3) drivers work every day that FedEx delivers packages, for 9.5 to 11 hours a day; and (4) managers oversee and evaluate performance of drivers, and may refuse to let them work.  

4. Conclusion 

These decisions will likely expose FedEx to millions of wage claims based on newfound employee status of drivers.  Drivers may seek millions of dollars in damages for overtime pay, back pay for missed meal and rest periods, and may seek to recoup expenses incurred for worker-provided equipment. 

FedEx is largely credited with having originated the "independent contractor" work model in the logistics industry.  As such, these decisions significantly impact many similarly-situated businesses, such as many trucking and courier companies, many of whose drivers work long hours for low pay and little job security, who have adopted FedEx model.  Ride sharing service companies such as Lyft and Uber Technologies are also at risk for litigation resulting form these decisions, as their drivers have similarly contended that they should be afforded employee status.  

The Alexander and Slayman decisions are especially important for corporations to take note, especially those sharing economy" companies that have followed the FedEx work model, both in terms of responding to anticipated litigation as well as reworking policies and procedures regarding independent contractors. 


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The New York Court of Appeals ruling that came down last week in Doe v. Guthrie Clinic, 2014 NY Slip Op 00138 (Court of Appeals 1/9/14), should prove helpful in evaluating the liability of medical corporations in cases involving the disclosure of confidential patient information where the breach of confidentiality is unrelated to the patient's treatment. In Guthrie Clinic, a nurse at the clinic treating the plaintiff for sexually transmitted disease recognized the plaintiff as the boyfriend of her sister-in-law, prompting the nurse to send her sister-in-law a series of text messages concerning the boyfriend's medical condition (i.e. his STD).  The ruling came in response to the certification of a question to the New York Court of Appeals from the Second Circuit, which had earlier disposed of other of plaintiff's claims. 

The key holding in the Court of Appeals decision is that liability did not extend to the medical corporation because its "duty of safekeeping a patient's confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment".  The Court analogized the facts here to those in N.X. v. Cabrini Med. Ctr, 739 N.Y.S.2d 348, a 2002 case where the defendant hospital was not found strictly liable for a surgical resident's sexual assault on a sedated patient. 

The Court reaffirmed the rule that "under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in the furtherance of the employer's business and within the scope of employment."  Under both the facts of Cabrini and Guthrie, the tortious actions of the employee were not reasonably foreseeable.

In a decision handed down on March 25, 2013, the Second Circuit dismissed that part of plaintiff's claim seeking to hold the medical corporation liable under a theory of respondeat superior. The Second Circuit determined that the nurse's motive in disclosing confidential patient information was entirely personal. The Court certified to the New York Court of Appeals the question whether NY recognized a common law right of action for breach of the fiduciary duty of confidentiality against medical corporations under the facts presented. 

The dissent to the majority opinion of the Court of Appeals argued that a patient's disclosure of confidential information is necessary for treatment and that the patient has no control over what happens to this information.  The dissent argued further that, just as in the Cabrini case scenario, involving a sedated patient laying helplessly in her hospital bed, a medical corporation should be held to an independent duty to prevent an employee from acting outside the scope of his employment and harming the patient. 

In response to the dissent, the majority rejoined that if the dissent found the majority holding too "narrow," the "dissent's reasoning is flawed for the opposite reason; it is too broad."  The Court was clearly unwilling to impose a strict liability standard for the release of confidential medical information.

The Court of Appeals decision is well-reasoned and correct, but issues over alleged breach of patient confidentiality are sure to be raised again.  As the dissent noted, "technological advances have made it possible to collect and house patient data in ways accessible to a patient's doctor and other health care provider staff.  Computers and cellular devices have transformed medical record keeping and health care service provision, making access to such data fast and easy."  Confidential patient information is increasingly being transmitted via web and mobile devices--tablets and smartphones.  

Issues concerning what measures are reasonably required to keep these networks secure will no doubt be raised in the future.

This blog was originally posted on January 21 on the Toxic Tort Litigation blog. Click here to read the original entry. 

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On August 21st, the U.S. Court of Appeals for the Ninth Circuit in Richards v. Ernst and Young held that an employer’s arbitration agreement could be enforced, despite any limitation on joint or class actions.

The decision came after defendant; Ernst & Young LLP appealed the district court’s decision denying its motion to compel arbitration of state wage and hour claims brought by its former employee, Michelle Richards. The district court ruled that the defendant had waived its right to arbitration by failing to raise the agreement as a defense early in litigation. However, plaintiff Richards’ action was consolidated with other former employees’ claims at a later date.

In reversing the district court’s decision, the Court of Appeals noted that waiver of a contractual right to arbitration is not favored. Therefore, any party arguing waiver of the right has a heavy burden of proof which includes demonstrating: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that right; and (3) prejudice to the party opposing arbitration resulting from the inconsistent acts.

The plaintiff argued prejudice as a result of the defendant’s failure to compel arbitration at an earlier date, after she had already provided pretrial information and incurred expenses. However, the Court of Appeals ruled this was insufficient prejudice. Plaintiff further argued she was prejudiced as there were meritorious arguments and as a result of compelling arbitration, some of her claims were dismissed. However, the Court noted that one of her claims was dismissed without prejudice, which did not constitute a decision on the merits. Furthermore, another of her claims was resolved when it was determined that she lacked standing to bring the claim- a decision that precedes and does not involve any analysis of the merits.

Last of all, the plaintiff argued that the Court should follow a decision of the National Labor Relations Board (NLRB) in D.R. Horton, 357 N.L.R.B. No. 184, 2012 WL36274 (Jan. 3, 2012) in which it was held that an arbitration agreement that did not allow employees to file joint, class, of collective employment related claims was invalid. The Court of Appeals declined to entertain the argument, as it was not properly raised before the district court for argument. However, it more importantly noted that it, as well as a majority of courts, have declined to follow the NLRB’s decision because it conflict with explicit pronouncements of the U.S. Supreme Court and the Federal Arbitration Act (FAA) 9 U.S.C. §§ 1–16. It specifically noted that the U.S. Supreme Court recently reiterated the importance of courts enforcing arbitration agreements, including those whose subject matter involves claims of federal law violations.

This case is important for employers, who may be able to limit their exposure to class actions by utilizing mandatory arbitration agreements such as the one in this case. Employers should be careful to understand the benefits of litigation versus arbitration and seek advice from an experienced attorney regarding the use of such an agreement in its employment contracts.

This blog was originally posted on September 19 on the Jampol Zimet website. Click here to read the original entry. 


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On April 30, 2013, the California Court of Appeal, Second Appellate District, Division Three, issued its opinion in the matter of Corenbaum v. Lampkin. The opinion addresses an evolving issue in California regarding the admissibility of medical bills when the medical provider has agreed to accept less than the full amount billed in complete payment for services.  The court categorically rejected plaintiff's arguments and held that the full amount billed for past medical services is irrelevant and therefore inadmissible to prove:

- the value of the past medical services;
- the value of past pain and suffering;
- the value of future medical expenses; -the value of future pain and suffering.

In addition, the amount actually accepted by the medical provider in satisfaction of its services is not hearsay and is admissible to prove all of the foregoing.   The court also held that expert witnesses may not rely on the full value bills as a basis for rendering opinions on the value of future medical services.  The decision is the latest and most significant to interpret the California Supreme Court's Howell decision. It is also very likely to be appealed to the California Supreme Court, but for now, it is the law in California.

For the full opinion, click here

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Categories: Court of Appeals | Damages

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On December 13, 2012, the Court of Appeals for the First District filed its opinion in Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP et al. (No. A134542.)  The decision is bad news for architects and other design professionals since it holds they can be held liable in negligence to third party purchasers under both the common law and Senate Bill 800. 

Skidmore, Owings & Merrill LLP (SOM) and HKS Architects (HKS) provided architectural and engineering services for the Beacon Residential Condominiums, a 595 unit development in San Francisco.  Alleged construction defects caused problems with water infiltration, inadequate fire separations, structural cracks, and other life safety hazards.  SOM and HKS demurred to claims for negligence and statutory negligence.  The trial court granted the demurrer, reasoning that design professionals owe no duty of care to condominium associations or residents if the owner retains final decision-making power over the design.  Plaintiffs appealed.

The court of appeals reversed, finding that design professionals do, under some circumstances, owe a duty of care to third party purchasers and residents even when they do not have control.  The Court viewed the issue as “not whether a design professional owes a duty of care to purchasers but the scope of that duty.”  It applied the six policy factors from Biakanja to assess the scope of that duty: 1) extent to which the transaction was intended to affect the plaintiff, 2) foreseeability of harm to the plaintiff, 3) degree of certainty that the plaintiff suffered injury, 4) closeness of connection between defendant’s conduct and the injury suffered, 5) the moral blame attached to defendant’s conduct, and 6) the policy of preventing future harm.

The contract between HKS and the developer contained a clause intended to limit HKS’s liability.  Ironically, the court used this clause as evidence that HKS and the other defendant were “more than well aware that future homeowners would necessarily be affected by the work that they performed.”  The court noted other facts that grounded their analysis.  The defects posed a serious risk of harm to people or property.  The plaintiffs were purchasers/owners and not merely investors.  Due to the numerous cross-complaints filed among the approximately 40 defendants named in the action, it was unlikely that the design professionals would bear liability out of proportion to their fault.  SOM and HKS were allegedly paid over $5,000,000 for their work on the project, a factor speaking to proportional liability as well. 

The court further reasoned that the Legislature sets public policy and that the legislative intent of Senate Bill 800 (enacted in 2000 as the Right to Repair Act), was clear that design professionals are liable to third parties for negligence.  This reasoning served to show that the sixth factor of Biakanja was met, for a common law analysis.  However, the court noted further that “To the extent that a Biakanja/Bily policy analysis is not otherwise dispositive of the scope of duty owed by a design professional to a homeowner/buyer, Senate Bill No. 800 is.”  This sentence implies that even if a design professional is not liable under the common law, they are liable under the statute.  As the court noted, this decision will have an impact on the cost of housing.  It also will likely have an impact on the cost of professional liability insurance for design professionals who work on residential developments.  It will be interesting to see whether SOM and HKS appeal to the Supreme Court of California.

This was originally posted on January 3 on Jampol Zimet blog. Check out the original post here
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Misunderstood heroes. Space travel. Alien worlds. Humanoids. Greed. Imperialism. Violence. Exploitation. Intercultural war. Redemption. And Copyright Infringement?

Everyone’s seen the movie Avatar. How many people have read the book Bats and Butterflies? How many people have even heard of it? The author of Bats and Butterflies alleges that James Cameron’s Avatar is a rip-off.

Background
Elijah Schkeiban, author of the book Bats and Butterfliesfiled a lawsuit against Cameron, author, director, and co-producer of Avatar, and Lightstorm Entertainment, Inc., Twentieth Century Fox Film Corporation, and Dune Entertainment LP.  Schkeiban alleges in his lawsuit that he created the Bats and Butterflies “franchise of products” in 1988 based on his script and novel of the same name.  He alleges that he registered the copyrights for the script and novel in 2000 and 2001. 

Schkeiban alleges that in 2005 he started shopping the script to various people in Hollywood, including an actor named Billy Zane. He alleges that Cameron’s Avatar copied Bats and Butterflies, and that the two stories are “substantially similar” in plot, sequence of events, characters, themes, moods, setting, and pace.  He alleges that Cameron and the other defendants therefore infringe his copyrights.  You can’t watch the movie Bats and Butterflies, to decide for yourself whether Schkeiban’s claims have merit, because the movie hasn’t been made.  But you could read the novel.

Anyway, the court dismissed his Complaint, noting (correctly) that the Complaint was missing an essential element of a copyright infringement claim:  it made no allegation whatsoever that Schkeiban gave or showed his script to Cameron or the other defendants, or that they had access to it. This was a fatal omission. 

Schkeiban then filed an “Amended” Complaint, in which he now alleged that when he gave his script to Zane in 2005, he asked Zane to give a copy of it to Cameron, and that Zane later told him that he had done so.  Again, the court dismissed the Amended Complaint.  The court noted that Schkeiban’s new allegation only alleged that Zane allegedly told Schkeiban that he (Zane) had given the script to Cameron.  This allegation simply wasn’t enough, the court said, to establish that Cameron actually saw the script. 

Schkeiban responded by filing a Second “Amended” Complaint.  In this third pleading, Schkeiban pointed out that Zane is an actor who had been in Cameron’s previous film, Titanic, and therefore was close to Cameron.  Schkeiban further alleged that he had had a telephone call with Zane in 2005 in which Zane assured him that he had given the Bats and Butterflies script to Cameron.  Otherwise, there were no changes from the previous Complaints.

Copyright Law Protects the Expression of Ideas
Before turning to the court’s final decision, a little about copyright law.  Many people who don’t work in intellectual property don’t realize that copyright law cannot and does not protect ideas.  It protects only the actual expression of those ideas. 

  • In literary works, such as novels or scripts, you can’t copyright what are called “scenes a faire,” meaning standard plots, scenes, characters, or themes. 
  • You can’t copyright plots, such as “boy-meets-girl, boy-breaks-up-with-girl, boy-reunites-with-girl, and boy-and-girl-live-happily-ever-after.” 
  • You can’t copyright scenes, such as “boy-meets-girl-in-a-dimly-lit-bar.” 
  • You can’t copyright characters, such as heroes, villains, victims, etc.
  • And you can’t copyright themes, such as “misunderstood and conflicted soldier in invading culture falls in love with a member of the invaded culture, switches allegiance, and leads the invaded culture in repelling his own culture.  This persistent theme in human literature is nicely explored in the Wikipedia entry for the film Avatar.   (Consider:  the novel Tarzan and the film Dances With Wolves.) 
In order for a court to find copyright infringement in a script or novel, there has to be almost exact copying of the actual mode of expression – i.e., the words and sentences.  Therefore, Schkeiban would have to show not only that Cameron saw or had access to his script, but also that Cameron literally or almost literally copied from it.

The Court’s Decision – Avatar Not “Substantially Similar” to Bats and Butterflies
The court again dismissed Schkeiban’s Second Amended Complaint, pointing out that this was Schkeiban’s third attempt to make out a copyright infringement claim.  The court noted that to prove copyright infringement, a claimant must prove: 

1. ownership of a valid copyright, and
2. copying by the alleged infringer (Cameron) of elements of the infringed work (Bats and Butterflies) that are original to that work. 

In turn, copying can be proven by showing that: 
1. the defendant had access to the infringed work, and
2. that the works at issue are “substantially similar.” 

The court noted that, even on his third attempt, Schkeiban’s effort to show that Cameron had access to Bats and Butterflies was vague.  But, even assuming Cameron had access, the court found that the elements of Bats and Butterflies and Avatar are not “substantially similar.” Bats and Butterflies is a fantasy work that involves a bullied human teenager, Joshua, who is magically transported to a planet and finds a war between bats and butterflies.  Joshua helps the butterflies defeat the bats and helps a caterpillar princess mature into a queen butterfly.  As we all probably know, Avatar involves a disabled war veteran/mercenary soldier who flies to a planet; through cloning technology is transformed into one of the native beings on that planet in order to spy on them; and eventually sides with the natives and helps them defeat the invading humans – his own people. 

Although both works involve humans who go to a distant planet and become involved in a war between two cultures there, the similarities end there, according to the court.  Schkeiban argued that his script and Cameron’s film were similar because both involved ideas of alien lands, deaths of family members, and battles between groups with competing interests.  The court found that the plots and sequences of events between the two stores are substantially different and that any similarities are merely general ideas, which cannot be copyrighted.  Similarities between Schkeiban’s hero, a bullied teenager, and Cameron’s hero, a paraplegic war veteran, are not copyrightable.  Any random similarities of plot scattered between the two stories are “scenes a faire.”  Both stories arguably involve themes of racism, genocide, imperialism, and environmentalism, but, again, themes cannot be copyrighted.  As a result, the court found that, after three attempts, Schkeiban could not prove copyright infringement, and dismissed his claim with finality (“with prejudice”).

Another note about copyright law:  In contrast to the standard “American Rule,” whereby each party in litigation pays its own attorneys’ fees, the copyright statute allows the prevailing party (here, Cameron, et al.) to recover its fees. After persuading the lower court to dismiss Schkeiban’s Complaint, the defendants moved for recovery of their attorneys’ fees.  The court denied their motion.

The court docket reveals that Mr. Schkeiban has filed an appeal to the U.S. Court of Appeals for the Ninth Circuit.   Bats in the Belfry?

Stay tuned.

*This article was originally posted to "The IP Stone" by Walter Judge on December 19, 2012. Read the original post here


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Wisconsin Act 10

Posted on September 18, 2012 10:12 by Laurie E. Meyer

2011 Wisconsin Act 10 (“Act 10”), which was signed into law by Governor Walker in March 2011, dramatically restricted the collective bargaining rights of municipal bargaining unit employees, except police and fire employees, and required those employees to pay portions of their retirement and health insurance benefits.  

On Friday, September 14, 2012, in a suit brought by Madison teachers and a union representing Milwaukee workers, Dane County Circuit Court Judge Juan Colas held major portions of the law unconstitutional.  Judge Colas found that Act 10 violates the school and local employees’ rights to free speech, free association, and equal representation because it, among other things, caps union workers' raises but not those of nonunion employees and because it treats police and fire employees differently than other public workers.

The situation in Wisconsin is still quite fluid.  While local public sector union leaders have pledged that they will immediately seek to bargain on a host of issues made off-limits to collective bargaining by Act 10, Wisconsin Attorney General J.B. Van Hollen has sought a stay of the ruling pending his appeal.  To further complicate matters, two challenges to the law are still pending in federal court.  The Seventh Circuit Court of Appeals will hear oral arguments on September 24th in connection with appeal of a federal judge’s March ruling which struck down portions of the law.  Another federal case brought on very similar grounds to the case heard by Judge Colas, has not yet been decided.  

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In 2010, the Supreme Court issued Stolt-Nielsen, S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010). In that opinion, the Court held that parties could not be compelled to participate in class arbitration unless they had agreed to do so; courts and arbitrators could not infer such agreement by the mere fact that a party had agreed to arbitrate.  Defense counsel thought (or hoped) that Stolt-Nielsen would preclude class arbitration whenever the arbitration clause did not expressly allow class or collective proceedings.  As disputes worked their way to the various courts of appeals, however, we see those intermediate appellate courts finding unique ways to allow class arbitration and effectively limit Stolt-Nielsen to its facts.

The Second Circuit Pushes Back In Jock

Last year, the Second Circuit continued what seems to be a running battle with the Supreme Court regarding arbitration clauses in Jock v. Sterling Jewelers, Inc., 646 F.3d 113 (2d Cir. 2011), cert. denied, 132 S. Ct. 1742 (2012).  I discussed that opinion at the time the Second Circuit released it.   In essence, the Second Circuit concluded that an arbitrator could decide that an arbitration clause allowed class arbitration so long as neither the agreement nor the law categorically prohibited the arbitrator from concluding otherwise.  Instead of requiring a specific intent to permit class arbitration, that decision allowed an arbitrator to use that procedure so long as the governing law did not prohibit it.

The Third Circuit Also Confines Stolt-Nielsen

Since Jock, two other courts of appeals have weighed in and likewise limited the reach of Stolt-Nielsen.  In Sutter v. Oxford Health Plans LLC, No. 11-1773 (3d Cir. Apr. 3, 2012), a physician accused a managed care network of improperly denying, underpaying, and delaying reimbursements for medical services.  The doctor originally brought the putative class action in New Jersey state court, and the managed care plan moved to compel arbitration.  The doctor contended that individual arbitration would violate New Jersey public policy and asked the state court to refuse to enforce the arbitration clause or to certify the class before sending the matter to arbitration.  The state court referred the matter to arbitration and ordered that the arbitrator decide all procedural issues, including whether class certification was warranted.  The arbitrator concluded that the provision allowed class proceedings and issued a clause construction award to that effect. The managed care network then unsuccessfully moved to vacate the clause construction award in district court.  The matter proceeded to class wide arbitration, and the managed care network again sought to vacate the resulting award.  The district court denied the motion to vacate the award and granted the doctor’s cross-motion to confirm it.

The Third Circuit affirmed using class arbitration in this setting.  As has become common in the lower courts, the Third Circuit seized on the parties’ stipulation in Stolt-Nielsen that their agreement was “silent” with respect to class arbitration (i.e., they had not reached any agreement on that issue).  In this case, the doctor and the managed care network disputed whether they intended to authorize class arbitration.  This was true even though the doctor had opposed enforcing the arbitration agreement in New Jersey state court on the ground that it would send the dispute to individual arbitration; the managed care plan contended this showed the doctor’s effective admission that the arbitration clause did not permit class wide proceedings.  The Third Circuit concluded that the arbitration clause was very broad and encompassed class proceedings in the absence of an express carve-out making such proceedings unavailable.  In relevant part, the clause stated:  “no civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey . . . .”  According to the Third Circuit, the lack of express class arbitration exclusion merely corroborated the arbitrator’s holding; it was not the basis of the holding.  “Thus, the arbitrator did not impermissibly infer the parties’ intent to authorize class arbitration from their failure to preclude it.”  

The First Circuit Is the Latest Appellate Court to Limit Stolt-Nielsen

More recently, the First Circuit likewise limited the scope of Stolt-Nielsen in Fantastic Sams Franchise Corp. v. FSRO Association, Ltd., No. 11-2300 (1st Cir. June 27, 2012).  In that dispute, the regional owners association of Fantastic Sams hair salons sued the franchisor, alleging that the franchisor had breached the licensing agreements.  The regional owners association and the franchisor entered into 35 agreements covering different areas of the country.  All of the agreements called for arbitration, though 25 of them executed after 1988 expressly prohibited class arbitration.  The remaining 10 agreements executed before 1988 did not expressly prohibit or permit class or collective arbitration.  The district court ruled that the arbitrator had jurisdiction to determine if those 10 agreements allowed the regional owners association to pursue a collective action on behalf of hundreds of individual salons. 

The First Circuit affirmed the district court’s decision.  As other courts have done, the First Circuit found it important that the parties in Stolt-Nielsen stipulated that they had not reached agreement on the issue of class arbitration: “a finding that an agreement does not preclude class arbitration is not enough to conclude that the agreement authorizes it when the parties have said that they reached no agreement on the subject” (emphasis added). Thus, the First Circuit rejected the notion that a provision must contain express language evincing intent to permit class or collective arbitration.  Rather, the parties can reach an implicit agreement to authorize class arbitration.  The First Circuit also rejected the notion that arbitration clause was “silent” on class arbitration in the same manner as in Stolt-Nielsen (i.e., the parties did not stipulate to such silence).  It was significant to the First Circuit that the agreement’s language changed in 1988 to exclude class arbitration.  “[A]dditional evidence could reveal that the later change in language reflects a conscious choice by the parties to exclude some forms of arbitration, available prior to 1988, after that date. . . .   In addition, there may be other evidence of intent presented to the arbitrators, such as industry practice.”  The First Circuit also did not believe that the associational action brought by the owners’ group was the same as class action.  The owners association did not seek to represent absent parties or parties that are not signatories to the agreement. Likewise, the arbitration panel would not need to certify a class or provide public notice of the arbitration; the owners association represented all of the individual salons.
The First Circuit could have relied only on this latter point—the nature of an “associational action” contrasted to a true class action—to reach this result.  Instead, however, it discussed in considerable detail the limiting stipulation in Stolt-Nielsen and the ways of finding an implied agreement to class wide arbitration.       

The Outlook for Defense Practitioners

In each of these three cases, the courts seemed to take great pains to limit Stolt-Nielsen based on those parties’ stipulation that the arbitration clause was “silent” on the issue of class/representative arbitration.  Indeed, the First Circuit’s Fantastic Sams decision seemed to reach that point unnecessarily.  That court likely could have pointed to the associational nature of the claims—a suit by the regional owners association rather than a class action—to conclude that the district court properly referred the issue to the arbitrator.  The lower courts’ focus on the Stolt-Nielsen stipulation also oddly minimizes the importance of the Supreme Court opinion.  In essence, that approach limits the applicability of Stolt-Nielsen to settings in which the parties stipulate that their arbitration clause is silent on the topic of class wide proceedings.  Of course, no party hoping to pursue class treatment will stipulate as much anymore, effectively meaning Stolt-Nielsen is limited to its facts.  It is difficult to conceive of the Supreme Court granting certiorari and issuing that opinion merely to announce a matter of statutory interpretation that will not apply to any other dispute.  That contradicts the notion that a “petition for writ of certiorari will be granted only for compelling reasons.”  Sup. Ct. R. 10.  

The approach also stands on its head that notion that parties cannot be compelled to arbitrate on a class wide basis unless they agreed to do so.  The lower courts’ decisions permit the inference of such intent when the arbitration clause refers to “any controversy or claim arising out of or relating to this contract” or similarly-broad language.  Such language is common in arbitration clauses; interpreting it to evince assent to class arbitration renders much of Stolt-Nielsen moot absent a stipulation.  Under that interpretation, the burden improperly shifts to the party opposing class arbitration to prove that the parties did not intend to permit such proceedings, which only seems possible with a “no class arbitration” clause.  In effect, this approach does what Stolt-Nielsen prohibits by allowing a court or arbitrator to infer intent to agree to class arbitration solely because the parties agreed to arbitrate at all.  

With lower courts taking these approaches, we should continue advising clients to include prohibitions on class, representative, or collective proceedings in their arbitration clauses.  We cannot rely on Stolt-Nielsen to prohibit such proceedings—at least not until further guidance from the Supreme Court.  If your client is a likely target of class actions and is able to do so, modifying existing arbitration agreements is advisable.  This may be in the form of modifying terms of use, subscription agreements, etc.  Of course, those steps alone cannot guarantee that no class arbitration will occur, particularly as the Consumer Financial Protection Bureau begins the rulemaking process to prohibit such provisions in covered agreements and the National Labor Relations Board has ruled that class prohibitions violate § 8(a)(1) of the National Labor Relations Act.  Adding lower courts’ efforts to limit Stolt-Nielsen to those types of uncertainties that we try to help clients avoid and understand is the best course for now.  

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Earlier this week, the United States Senate voted to confirm Paul Watford to the U.S. Court of Appeals for the Ninth Circuit.  The Ninth Circuit is the nation’s largest circuit court with a jurisdiction that covers 62 million residents of California, Nevada, Oregon, Washington, Idaho, Arizona, Montana, Alaska and Hawaii.  Prior to Watford’s confirmation, only one of the twenty-nine seats on the Ninth Circuit was held by an African-American judge, Judge Johnnie Rawlinson, who was appointed by President Clinton.  Only two other African Americans have served on the Ninth Circuit, President Carter appointed Jerome Farris and Cecil Poole, and they served until 1995 and 1996, respectively.  Judge Jacqueline Nguyen was also confirmed this month for a seat on the Ninth Circuit.  She will be the first Vietnamese American and first Asian-Pacific woman to serve on a federal appeals court.  Judge Nguyen will fill a new seat on Ninth Circuit Court of Appeals that has been vacant since it was authorized in January 2009.  

 
While it is encouraging to see greater diversity on the Ninth Circuit, some believe that there is a real judicial vacancy crisis in the federal courts, with more than 75 judgeships currently vacant.  During his presidential campaign, President Obama expressed his desire to diversify the federal judiciary.  Some argue that this crisis is in large part the result of the unprecedented obstruction President Obama's nominees have faced. Presidents Clinton and Bush had just over 200 lower court judges confirmed during their first terms, but after three and a half years of the Obama presidency, the Senate has confirmed only 145 of his judicial nominees.  On May 7th, members of the Obama administration met with community leaders, legal experts and representatives of numerous national organizations, including the Hispanic National Bar Association and the National Bar Association.  The national groups issued a joint statement which read, in part: “This vacancy crisis, which has left 250 million Americans living in communities with unstaffed federal courtrooms, must end, and the confirmation process must not be allowed to be slowed even further by election-year politics. We believe that every nominee submitted by the President this year deserves a yes-or-no vote confirmation vote. Together, we will continue to fight for a fair judiciary and stand with the American people to ensure they have timely access to qualified judges to hear their disputes and have their day in court.”
 
Is there a judicial vacancy crisis in the federal courts?  If so, what impact is it having on President’s Obama’s desire to diversify the federal judiciary?
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Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.

In Pesa v. Yoma Development Group, Inc. et al., 18 N.Y.3d 527, … N.Y.S.2d … (Feb. 9, 2012), the New York State of Appeals examined the issue whether prospective buyers in a damages suit must show that they were “ready, willing and able” to close the transaction – that is, but for the seller’s repudiation, the transaction could and would have closed. In reversing the Appellate Division, Second Department, the Court held that the burden of proof was the “real question” in a case like this:

"Should the buyers be required to show they would and could have performed? Or should the seller have the burden of showing that they would not or could not? Since the buyers can more readily produce evidence of their own intentions and resources, it is reasonable to put the burden on them."

To New York's high court, its conclusion was "supported by common sense" Thus, the Court of Appeals held that the buyers were not entitled to summary judgment and that issues of fact needed to be resolved, in favor of the buyers, before the buyers could be found to be actually “ready, willing and able.” In the instant case, for example, the buyers needed to demonstrate that they could secure a mortgage commitment within the required sixty day period.

The take-away from this decision is that buyers seeking redress for a seller’s repudiation of a real estate contract now have the same burden of proof whether they are seeking damages or specific performance.

This article was originally published in the Toxic Tort Litigation Blog of EpsteinBeckerGreen
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