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Defective Medical Products

Defective Medical Products

Personal Injuries

Dangerous Prescription Drugs

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Are Boats Required to Have Insurance in California?

  California law does not require boaters to insure their boats. Despite California’s policy on boater’s insurance, it is wise to get coverage to minimize risks to your personal assets. Boating insurance is like car or home insurance; it covers

McGill v. Citibank: Arbitration Clauses

On April 6, 2017, the Supreme Court of California issued an opinion in McGill v. Citibank, N.A., No. S224086, 2017 Cal. LEXIS 2551 (Apr. 6, 2017) that opens up new possibilities for consumers to hold defendants that are engaged in wrongful business practices accountable even where an arbitration clause is at issue.

After opening an account with Citibank, the plaintiff’s account agreement was amended to include arbitration provisions.  The plaintiff sued Citibank in part to enjoin its allegedly deceptive business practices (“public injunctive relief”).  Citibank argued that the plaintiff could not sue for injunctive relief because the U.S. Supreme Court’s decisions in Concepcion and Italian Colors held that such claims are preempted under the Federal Arbitration Act (“FAA”).  However, the California Supreme Court found that the arbitration agreement in McGill was invalid and unenforceable under California law because the agreement limited the plaintiff’s right to obtain public injunctive relief under the Unfair Competition Law (“UCL”), Consumers Legal Remedies Act (“CLRA”), and False Advertising Law (“FAL”) in any forum, not just within the arbitration context.  It cited Civil Code section 3513, which provides in part that “a law established for a public reason cannot be contravened by a private agreement.”  McGill, 2017 Cal. LEXIS 2551, at *23, 25, 30 (quoting Civ. Code § 3513).  Significantly, the California Supreme Court held that “the FAA does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under the UCL, the CLRA, or the false advertising law.”  McGill, 2017 Cal. LEXIS 2551, at *28 (emphasis in the original).

The end result of McGill v. Citibank is that arbitration clauses may not be enforceable if they expressly or effectively prevent statutory claims for “public injunctive relief” (i.e., relief that by and large benefits the general public) in court and arbitration.  Post-McGill, there is now a chance for consumers in California to bring public injunctive relief claims against businesses even where an account or customer service agreement includes an arbitration clause, depending on the terms of the arbitration clause.  However, this case and the questions addressed by the California Supreme Court could find their way to the U.S. Supreme Court soon, prompting further analysis under Concepcion and Italian Colors.

If you are a consumer who has been the subject of potential unlawful, deceptive or fraudulent business practices, please contact our office.

Role Reversal in Recent State Supreme Court Arbitration Decision

In yesterday’s Sandquist v. Lebo Automotive decision, a split California Supreme Court issued a decision further construing the status of class actions in arbitration agreements. In short, the court ruled that it should be an arbitrator, and not a court, who interprets the arbitration agreement to see whether bringing claims on behalf of a class would be allowed in this alternative forum. Interestingly, stakes in the case caused roles to be flipped from a typical arbitration dispute, where plaintiffs attempt to keep the matter before a trial judge and defendants seek to empower the arbitrator.

The case was similar to prior decisions in that the crux of the case came down to the arbitration agreement itself. After all, arbitration agreements are simply clauses in contracts, and are thus subject to state law rules of contract interpretation, within the boundaries set by the Federal Arbitration Act. And the Supreme Court has already addressed how such an issue should be interpreted. The justices have explained that “[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon whether the parties agreed to submit that question to arbitration.” And among other provisions, the contract noted that “claims . . . shall be submitted to and determined exclusively by binding arbitration.”

With the broad language in the contractual provisions, the decision seems simple. So why the controversy? For one, ever since the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion and Am. Exp. Co. v. Italian Colors Rest., the status of class actions in arbitration has been in jeopardy. This decision shows that when contract interpretation is in the hands of an arbitrator, they may sometimes rule for plaintiffs and allow class actions to survive. Defense argue that there is “too much at stake for the arbitrator to make the call on class proceedings.” But this is likely just a reflection of the fact that businesses are threatened; in a forum where plaintiff’s rights have repeatedly been foreclosed, some hope remains.

With the decision seemingly out of line with other circuits, defense counsel is weighing its options. Defense counsel commented on a cert petition pending in the U.S. Supreme Court on the issue, saying the justices “would like to answer this question, they just have not been properly asked it.” For now, however, the Sandquist holding is the law in California.

California State Legislature Passes Bill Restricting Mandatory Arbitration of Labor Code Violations

Blog Author: Ian J. Barlow

The California State Legislature has passed significant legislation affecting the rights of California workers.  On August 31, 2015, the Legislature passed Assembly Bill 465 (“AB 465”), which has the stated purpose of ensuring that any waivers of important employment rights and procedures for California Labor Code violations are made voluntarily.  AB 465 would prohibit employers from requiring that employees or potential employees sign arbitration provisions that waive their ability to pursue employment claims with, for instance, the Labor Commissioner, a public or law enforcement agency, or in court as a condition of their employment.  It seeks to eliminate forced waivers, where an employer refuses to hire or fires an employee if they do not agree to subject employment disputes to mandatory arbitration.  In addition, the bill mandates that agreements to waive such employment protections, procedures and court or governmental forums are made with the consent of the employee by requiring that such waivers are entered into knowingly, voluntarily and in writing.

Proponents of AB 465 contend that forced waivers and mandatory arbitration of workplace claims undermine our public justice system by eliminating important procedural guarantees of fairness and due process.  (Senate Floor Analysis of AB 465, Aug. 21, 2015, at p. 5.)  They also note that employers typically select the arbitration services provider, which creates a “repeat player advantage” favoring employers that utilize the same provider and disadvantaging individual employees who are one-time participants in the arbitration process.  Furthermore, arbitration clauses are often buried in fine print of employment applications or employee manuals and handbooks, making it difficult or nearly impossible for an employee to evaluate and make an informed choice about his or her options for resolving potential employment disputes.  Additionally, forced arbitration provisions are becoming increasingly common in “low-wage workplaces where immigrant workers who may not even speak the language used in the contract are required to sign as a condition of employment.”  (Id. at p. 8.)

AB 465 adds section 925 to the California Labor Code, which in part:

Labor Code section 925 would apply to any agreement to waive rights, penalties, remedies, forums, or procedures for Labor Code violations – including arbitration agreements – that were entered into, modified, renewed, or extended on or after January 1, 2016.

The bill was enrolled and sent to the Governor on September 3, 2015.  The Governor has until October 11, 2015 to sign or veto the bill.

Defective & Dangerous Products

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