ADR Case Updates
Arbitrator Deciding Gateway Issues; PAGA Claims Not Arbitrable; Mediation Fees Recoverable; Nonsignatories Compelling Arbitration; and More, 03/06/2019
U.S Supreme Court Rules Arbitrator Must Determine Arbitrability In Presence Of Delegation Clause, Even Where District Court Believed Arbitration Is 'Wholly Groundless'
In Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524 (2019), Archer & White Sales, Inc., sued Henry Schein, Inc., alleging violations of federal and state antitrust law and seeking both money damages and injunctive relief. The relevant contract between the parties provided for arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief. Invoking the Federal Arbitration Act, Schein asked the District Court to refer the matter to arbitration, but Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part. Schein contended that because the American Arbitration Association rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator - not the court - should decide whether the arbitration agreement applied. Archer & White countered that Schein's argument for arbitration was wholly groundless, so the District Court could resolve the threshold arbitrability question. The District Court agreed with Archer & White and denied Schein's motion to compel arbitration. The Fifth Circuit affirmed.
Vacated and remanded: In his inaugural opinion as the newest U.S. Supreme Court member, Justice Brett M. Kavanaugh observed that a "wholly groundless" exception to arbitrability is inconsistent with the Federal Arbitration Act and Supreme Court precedent. Under the FAA, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. The parties to such a contract may agree to have an arbitrator decide not only the merits of a particular dispute, but also gateway questions of arbitrability. Therefore, when the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitration is wholly groundless.
However, High Court Also Holds That Transportation Workers Are Exempted From Arbitration - Court (Not Arbitrator) Must Decide If Federal Arbitration Act's Section 1 "Contract Of Employment" Exclusion Applies To Interstate Trucking Company Before Compelling Arbitration
In New Prime, Inc. v. Oliveira, 139 S.Ct. 532 (2019), Dominic Oliveira was a truck driver for New Prime Inc., an interstate trucking company. Oliveira worked under an operating agreement that characterized him as an independent contractor and contained a mandatory arbitration provision with a "delegation clause," delegating to the arbitrator questions of arbitrability. Oliveira filed a wage and hour class action in district court alleging that he and other drivers were employees, not independent contractors, and denied lawful wages. New Prime moved to compel arbitration. Oliveira opposed the motion claiming that the court lacked authority because Section 1 of the Federal Arbitration Act, 9 U.S.C. Section 1, et seq., ("Act") excepts from coverage disputes involving "contracts of employment" of certain transportation workers. New Prime countered that any question regarding Section 1's applicability belonged to the arbitrator alone to resolve under the operating agreement's delegation clause, or, assuming the court could address the question, that "contracts of employment" referred only to contracts that establish an employer-employee relationship and not to contracts with independent contractors. The district court denied the motion to compel arbitration. The First Circuit affirmed.
Affirmed: Justice Neil M. Gorsuch delivered the opinion for the court, his second dealing with arbitration (See, Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 [2018], upholding class action waivers in employment cases). A court (not arbitrator) should determine whether a Section 1 exclusion applies before ordering arbitration. A court's authority to compel arbitration under the Act does not extend to all private contracts, no matter how emphatically they may express a preference for arbitration. Instead, antecedent statutory provisions limit the scope of a court's powers to stay litigation and compel arbitration "accord[ing to] the terms" of the parties' agreement under Sections 3 and 4 of the Act.
Section 2 provides that the Act applies only when the agreement is set forth as "a written provision in any maritime transaction or a contract evidencing a transaction involving commerce." For a court to invoke its statutory authority under Sections 3 and 4, it must first know if the parties' agreement is excluded from the Act's coverage by the terms of Sections 1 and 2. This sequencing is significant when analyzing the operating agreement's "delegation clause," giving the arbitrator authority to decide threshold questions of arbitrability, and that the "severability principle" requires that both sides take all their disputes to arbitration. But a delegation clause is merely a specialized type of arbitration agreement and is enforceable under Sections 3 and 4 only if it appears in a contract consistent with Section 2 that does not trigger Section 1's exception. The Act's severability principle applies only if the parties' arbitration agreement appears in a contract that falls within the field Sections 1 and 2 describe.
Irrespective of whether Oliveira was an independent contractor or an employee, the operating agreement falls within Section 1's exception from arbitration. This is so because the Act's term "contract of employment" refers to any agreement to perform work. At the time of the Act's adoption in 1925, the phrase "contract of employment" was not a term of art, and dictionaries tended to treat "employment" more or less as a synonym for "work." Contemporaneous legal authorities provide no evidence that a "contract of employment" necessarily signaled a formal employer-employee relationship. Thus, the district court correctly determined at the outset that the Act's Section 1 exclusion applied, excepting the dispute from arbitration.
Court (Not Arbitrator) Must Decide Whether Grievance Under Collective Bargaining Agreement Must Be Arbitrated (9th Cir.)
In Local Joint Exec. Bd. v. Mirage Casino-Hotel, 911 F.3d 588 (9th Cir. 2018), the Mirage Casino-Hotel, a hotel on the Las Vegas Strip, had entered into a collective bargaining agreement (CBA) with the Local Joint Executive Board of Las Vegas and Culinary Workers Union and Local 226 ("Union"), which represented Mirage's food and beverage employees. The CBA governed the parties' relationship from 2007 to 2013. In December 2012, the Union filed a grievance against Mirage. The grievance culminated in an arbitration award in Mirage's favor after the arbitrator concluded that the grievance was "not arbitrable." The district court confirmed the award, and the Union appealed claiming the court erred in finding that the Union had consented to giving the arbitrator the jurisdiction to decide whether the CBA created a duty for the parties to arbitrate the grievance.
Reversed and remanded: Substantive arbitrability, i.e., Whether a CBA creates a duty for the parties to arbitrate a particular grievance, "is a question for judicial determination" unless the parties "clearly and unmistakably provide otherwise." In disputes involving a CBA with arbitration provisions, the arbitrability inquiry begins with a presumption of arbitrability. However, the arbitrator concluded that the grievance was "not arbitrable" without even considering whether he had the authority to make that determination. Here, the record reflected that the Union had not "clearly and unmistakably" imbued the arbitrator with the power to decide whether the CBA created a duty for the parties to arbitrate the grievance. Therefore, the arbitrator and district court erred in determining that the arbitrator had the authority to decide whether the CBA was arbitrable. This was a question for the district court in the first instance because the parties had not clearly and unmistakably provided otherwise.
PAGA Claims Not Arbitrable – California Supreme Court Holding In Iskanian, Not The U.S. Supreme Court Decision In Epic, Controls
In Correia v. NB Baker Electric, Inc., (2019) 32 Cal.App.5th 602, Plaintiffs Mark Correia and Richard Stow sued their former employer, NB Baker Electric, Inc. (Baker), alleging wage and hour violations and seeking civil penalties under the Private Attorney General Act of 2004 (PAGA). (Lab. Code, § 2699 et seq.) Baker responded by petitioning for arbitration under the parties' arbitration agreement. The agreement provided that arbitration shall be the exclusive forum for any dispute and prohibited employees from bringing a "representative action." The trial court granted the arbitration petition on all causes of action except for the PAGA claim. On the PAGA claim, the court followed the California Supreme Court decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, which held unenforceable agreements to waive the right to bring PAGA representative actions in any forum, and the California Court of Appeal decision in Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, which held a PAGA claim cannot be compelled to arbitration without the state's consent. The trial court stayed the PAGA claim pending the conclusion of the arbitration.
Affirmed: Contrary to Baker's argument, Iskanian still controls PAGA claims notwithstanding the recent United States Supreme Court decision, Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612. Although the Epic court reaffirmed the broad preemptive scope of the Federal Arbitration Act, Epic did not address the specific issues before the Iskanian court involving a claim for civil penalties brought on behalf of the government and the enforceability of an agreement barring a PAGA representative action in any forum. Therefore, the trial court properly ruled the waiver of representative claims in any forum is unenforceable. Moreover, the trial court was correct in declining to order plaintiffs' PAGA claim to arbitration. Although Iskanian did not decide the issue of whether courts have the authority to order a PAGA representative action into arbitration, several California Courts of Appeal have held a PAGA arbitration requirement in a predispute arbitration agreement is unenforceable based on Iskanian's view that the state is the real party in interest in a PAGA claim. The state must have consented to the agreement to effectively waive the right to bring the PAGA claim into court.
Fees For A Voluntary (Not Court-Ordered) Mediation May Be Recovered As An "Allowable Cost" By The Prevailing Party After Trial
In Berkeley Cement, Inc., v. Regents of the University of California, (2019) 30 Cal.App.5th 1133, Berkeley Cement did structural concrete work for the University of California at its Merced campus. A dispute arose regarding payment for additional work done by Berkeley. The case did not settle at mediation, went to trial, and the University won. The trial court awarded the University $15,950 in mediation fees and Berkeley appealed.
Affirmed: Generally, a prevailing party is entitled to recover allowable costs as a matter of right. Code Civ. Proc., § 1033.5 sets forth the costs that are allowable and those that are not. Items that are not mentioned one way or the other, like mediation fees, are up to the sole discretion of the trial court. In order to be awarded, such costs must be "reasonable in amount," and "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." The burden is on the party claiming the costs to show the expense was reasonable and necessary.
Mediation, whether court-ordered or voluntary, is now recognized as a reasonably necessary part of the litigation process. "Encouraging the parties to resolve lawsuits at the earliest time and before a costly and time-consuming trial, is a necessary part of litigation as conducted in this state. The award of mediation fees is no less reasonably necessary to the conduct of litigation, than the award of arbitrator's fees ..., which are also statutorily authorized."
Consequently, the appellate court concluded that fees incurred in a voluntary mediation are not disallowed as "not reasonably necessary to the conduct of litigation." To the contrary, whether such costs should be awarded to the prevailing party must be determined by the trial court in the first instance while exercising its sound discretion based upon the facts and circumstances of the particular case before it. Since Berkeley Cement failed to show that the trial court abused its discretion in awarding the University its fees incurred in voluntary mediation, the appellate court affirmed that portion of the judgment.
Agents Who Are Non-Signatories To Arbitration Agreement May Not Compel Arbitration Unless They Are Third-Party Beneficiaries Or Have Actual And Substantial Interest In Underlying Agreement
In Cohen v. 2008 TNP 2008 Participating Notes (2019) 31 Cal.App.5th 840, Thompson National Properties, LLC (TNP) established two subsidiary limited companies, TNP 2008 Participating Notes Program, LLC and TNP 12 % Notes Program, LLC (Programs), for investors to invest in real estate developments. Mark Cohen, an attorney and investment adviser, recommended that his clients and his law firm's retirement plan invest in the Programs. After the Programs defaulted on the promissory notes, Cohen sought to arbitrate claims by his clients and the retirement plan against the Programs, TPN (the nonsignatory parent company), and TPN's chief executive officer, Anthony Thompson. Only Cohen's clients, the retirement plan, and the Programs signed the operative arbitration agreements. After the Programs agreed to arbitration, the trial court granted a petition to compel TPN and Thompson to arbitrate as well, and subsequently granted a petition to confirm the resulting arbitration award in favor of Cohen's clients. The Programs, TPN, and Thompson appealed.
Vacated and remanded: Cohen did not have standing to bring the petition to compel. He did not claim to be a third-party beneficiary of the underlying contract. Rather, he asserted an agency theory. A signatory to an arbitration agreement can compel a nonsignatory parent company of a signatory subsidiary on an agency theory only where (a) the parent controlled the subsidiary to such an extent that the subsidiary was a mere agent or instrumentality of the parent and (b) the claims against the parent arose out of the agency relationship. Here, the record did not support such facts and the trial court erred by compelling the nonsignatories to arbitrate.
Thus, An Agency Or Similar Relationship (Such As Co-Employers) Between The Nonsignatory And One Of The Parties To The Arbitration Agreement Enables The Nonsignatory To Compel Arbitration
In Vasquez v. San Miguel Produce, Inc. (2019) 242 Cal.Rptr.3d 852, Plaintiffs Antonia Vasquez and Cecilia Zacarias were hired by Employer's Depot, Inc. (EDI), a staffing agency. EDI was Plaintiffs' employer when they worked on assignment. Plaintiffs and EDI agreed in writing to arbitrate "all disputes that may arise within the employment context." EDI assigned Plaintiffs to pack produce for San Miguel Produce, Inc. Plaintiffs later sued San Miguel for labor law violations. San Miguel cross-complained, blaming EDI for causing Plaintiffs' alleged damages. EDI and San Miguel jointly moved to compel arbitration. The trial court denied their motion.
Reversed and remanded: EDI and San Miguel were co-employers with an identity of interests and mutual responsibility for complying with state law governing employers in the produce packing industry. Plaintiffs agreed to arbitrate "all disputes" arising from their employment. At all relevant times EDI was their employer. Plaintiff's claims against nonsignatory San Miguel are rooted in their employment relationship with signatory EDI, and the complaint alleged that the two were joint employers. EDI and San Miguel were equally responsible for complying with wage and hour laws; and the entire dispute arose from Plaintiffs' employment with EDI, which had to ensure lawful work breaks when its employees were assigned to a client such as San Miguel. For those reasons, the entire lawsuit involving Plaintiffs, EDI, and San Miguel fell squarely within the arbitration agreement because it was a dispute, claim or controversy that arose from Plaintiffs' employment. The trial court should have compelled arbitration.
Illegally Recorded Conversations Introduced In Contractual Arbitration Are Not "Protected Activities" Under SLAPP Statute And May Give Rise To Tort Liability Because Arbitration Is Neither A "Judicial" Nor "Official" Proceeding
In Zhang v. Jenevein (2019) 31 Cal.App.5th 585, Tang Energy Group, Ltd., and Aviation Industry of China, through its subsidiary AVIC International USA, Inc., formed Soaring Wind Energy LLC to develop wind farms and promote wind farm equipment sales. The parties entered into a written contract that included exclusivity and arbitration provisions. Tang Energy and its president, E. Patrick Jenevein III, learned that Aviation Industry had created a number of subsidiaries that competed with Soaring Wind. Jenevein secretly recorded conversations with a business associate, Sherman Xuming Zhang, president of AVIC International, and later introduced the recordings as evidence in contractual arbitration. The arbitrators ultimately issued an award in favor of Tang Energy.
After the arbitration, Zhang and AVIC USA filed an action against Jenevein for invasion of privacy and eavesdropping on or recording confidential communications in violation of Penal Code Sections 632 and 637.2. Jenevein filed a special motion to strike under Code of Civil Procedure Section 425.16. The trial court denied the motion, ruling that neither making the recordings nor using them as evidence in the arbitration was protected activity.
Affirmed: The trial court was correct. A moving defendant's initial burden under Section 425.16 is to show that plaintiff's cause of action arises from protected activities. Specifically, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law ...."
Contractual arbitration is neither a judicial nor official proceeding authorized by law. Rather, it is an alternative dispute resolution process that bypasses judicial proceedings. Because Jenevein's actions in recording the conversations and using the recordings in the arbitration were not in connection with a judicial or official proceeding authorized by law, they were not protected activities under section 425.16.
Arbitration Award Set Aside Where Award "Fails To Draw Its Essence From The Agreement" (9th Cir.)
In Aspic Engineering and Construction v. ECC Centcom Constructors, 913 F.3d 1162 (9th Cir. 2019), the U.S. Army Corps of Engineers (USACE) contracted with EEC Centcom Constructors (ECC), which subcontracted with Aspic Engineering and Construction (Aspic) to build various buildings in Afghanistan. The subcontracts incorporated many strict Federal Acquisition Regulation (FAR) clauses binding against Aspic, including one governing termination by convenience. Later, USACE terminated for convenience certain contracts with ECC which, in turn, terminated the subcontracts with Aspic. USACE determined it owed no additional money to ECC and, consequently, ECC denied a settlement demand from Aspic under the subcontracts. The parties proceeded to arbitration, and Aspic was awarded over $1 million based in part on the arbitrator's reasoning that Aspic, a local Afghanistan firm, could not reasonably be held to the FAR terms. The district court vacated the award.
Affirmed: Although federal court review of arbitration awards is limited and highly deferential, courts may vacate awards where arbitrators exceed their powers. This can occur when an award is completely irrational, or exhibits a manifest disregard of the law. An award is completely irrational if it "fails to draw its essence from the agreement." Therefore, the question on appeal here was not whether the arbitrator's award was reasonable over all, but whether the arbitrator exceeded his powers in finding that Aspic need not comply with the strict FAR provisions that were incorporated by reference into Aspic's subcontract. One of those incorporated provisions was termination for convenience. Because the award concluded that Aspic was not bound by the termination for convenience provision in its subcontract, the award failed to draw its essence from the arbitration agreement and was properly vacated by the district court.
Arbitration Improper Where Dispute Based On Plaintiff's Rights As A Stockholder And Not His Employment Relationship
In Howard v. Goldbloom (2018) 30 Cal.App.5th 659, Jeremy Howard was recruited by Anthony Goldbloom to join Kaggle, Inc., a tech company. Howard became president and chief scientist. He signed an employment agreement that included an arbitration clause and was given nearly half of Kaggle's outstanding stock in recognition of his work. Howard was later terminated and signed a separation agreement with an additional arbitration clause. Kaggle suffered business setbacks that required raising more capital through the issuance of additional stock that diluted Howard's shares. Kaggle ultimately merged with Google. Howard sued Goldbloom and others claiming his share of the merger proceeds were insufficient. Defendants claimed the dispute arose under Howard's employment agreement and sought to compel arbitration. The trial court found the dispute arose under Howard's rights as a shareholder, not as an employee, and denied the motion.
Affirmed. Howard's claim is rooted in, and any harm he suffered is measured by, his rights as a stockholder of Kaggle. The dispute was whether defendants wrongfully diluted the value of his shares, breached their fiduciary duties to him as a minority stockholder, and unjustly enriched themselves at his expense. Defendants' fiduciary duties to minority shareholders and alleged wrongs existed independently of any employment relationship between Howard and Kaggle. Consequently, the arbitration clause did not apply.
Arbitrator May Reform CBA Where Mutual Mistake Occurred (9th Cir.)
In Asarco v. United Steel, 910 F.3d 485 (2018), Asarco, a minor of copper, and its employee's Union signed a Basic Labor Agreement ("BLA") under which Union members who participated in Asarco's pension plan were eligible for a quarterly bonus. However, a 2011 Memorandum of Understanding ("MOU") excluded new hires from the pension plan, effectively barring them from the bonus. Negotiating the MOA, the parties never discussed the bonus and whether it was affected by the MOU regarding pension eligibility. The Union filed a grievance over Asarco's failure to pay the bonus to the new hires, which proceeded to arbitration. Finding that neither party anticipated the MOU would impact new hires' eligibility for the bonus, the arbitrator decided the parties were mutually mistaken as to the MOU's terms, and reformed the BLA such that the new hires remained eligible for the bonus. Seeking to vacate the decision, Asarco contended the "no-add" provision of the BLA precluded the arbitrator from reforming the parties' agreement. The district court agreed with the arbitrator and confirmed the arbitration award.
Affirmed: The Supreme Court has held that courts should generally uphold an arbitrator's ruling in this context, unless, inter alia, it "does not draw its essence from the collective bargaining agreement." In deciding whether an award "draws its essence" from the BLA, the Ninth Circuit deemed "the appropriate question" was whether the arbitrator looked "to construe the contract, or did he not?" Arbitrators do not generally have the authority to re-write CBA's, but they may "reform a contract to correct an obvious mutual mistake." The arbitrator found "precisely this scenario" here, as the Union presented "substantial... evidence" that, in negotiating the BLA, the parties "never discussed or even acknowledged the MOU would make new hires ineligible for the bonus." Applying ordinary principles of contract law, the arbitrator concluded that the proper remedy for the parties' mutual mistake was reformation. Because the arbitrator was construing the BLA in light of the evidence presented, and applying basic principles of contract law, the award "drew its essence from the BLA."
Federal Arbitration Act's Three-Month Deadline Governed By Federal Rule Of Civil Procedure 6(A) – Petition Of Vacatur One Day Late (9th Cir.)
In Stevens v. Jiffy Lube Int'l, 911 F.3d 1249 (9th Cir.), Randy and Elissa Stevens operated a service center as Jiffy Lube franchisees. In 2013, Jiffy Lube declined to renew its lease on the premises housing the service center, and the Stevenses tried unsuccessfully to negotiate a new lease directly with the landlord. Jiffy Lube terminated the franchise agreement because the Stevenses lost the right to possession of the premises. The franchise agreement had a binding arbitration provision. Following arbitral proceedings, the arbitrator issued a final award in favor of Jiffy Lube on September 14, 2016. On December 15, 2016, the Stevenses petitioned the district court to vacate the arbitral award under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 10. The district court entered judgment and a final order that assumed, without deciding, that the petition was timely and denied the petition on the merits.
Affirmed. The FAA requires notice to be "served upon the adverse party or his attorney within three months after the award is filed or delivered." 9 U.S.C. § 12. The arbitrator delivered the final award on September 14, 2016, and the Stevenses filed their lawsuit and served Jiffy Lube on December 15, 2016. The threshold question was whether Federal Rule of Civil Procedure 6(a) or the FAA governs how to calculate the three-month deadline under 9 U.S.C. § 12. Rule 6(a) provides the controlling protocol. The Federal Rules of Civil Procedure apply to FAA proceedings unless the FAA "provide[s] other procedures." Fed. R. Civ. P. 81(a)(6)(B). The FAA allows three months to petition for vacatur, but it does not "provide . . . procedures" for calculating the "within three months" period. Id.; 9 U.S.C. § 12. The Advisory Committee treated identical statutory language as the paradigmatic situation in which Rule 6(a) applies: "[I]f a filing is required to be made 'within 10 days' or 'within 72 hours,' subdivision (a) describes how that deadline is computed." Fed. R. Civ. P. 6 advisory committee's note to 2009 amendment. For that detail, then, look to Rule 6: When the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1). Applying this three-step process, the Stevenses filed their petition one day late. At step one, exclude the first day, September 14, 2016, when the arbitrator delivered the final award. At step two, calculate three months from September 15, 2016. The first month began September 15 and concluded October 14; the second month began October 15 and concluded November 14; and the third month began November 15 and concluded December 14. Step three requires no adjustment because December 14, 2016, was a Wednesday and not a legal holiday. The Stevenses disputed only the calculation at step two, arguing that three months from September 15, 2016, was December 15, 2016. That is incorrect. "[C]ount[ing] every day," Fed. R. Civ. P. 6(a)(1)(B), a month beginning on the fifteenth concludes on the fourteenth of the following month-just as the month beginning January 1 concludes on January 31, not February 1; and just as the week beginning on Monday concludes on Sunday, not the following Monday. December 14 was within three months of September 14, but December 15 was not.
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