[UPDATED THROUGH SEPTEMBER 14, 2016]
Can Non-Legislative Policy Statements Support Overturning an Arbitration Award? After the Court of Appeal reversed the judgment which confirmed an arbitration award upholding the engagement agreement and finding that counsel was entitled to all of its fees, the Supreme Court granted review on the following issues: (1) May a court rely on non-legislative expressions of public policy (i.e., California Rules of Professional Conduct, Rule 3-310), to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work? Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., S232946 (opinion below B256314, 244 Cal.App.4th 590, mod. 245 Cal.App.4th 63b). Review was granted 4/27/16
Can an Agricultural Employee Rely on the Statutory “Mandatory Mediation and Conciliation” Process? After the Fifth District Court of Appeal reversed a decision of the Agricultural Labor Relations Board and denied a petition for peremptory writ of mandate, the Supreme Court granted review on the following issues: (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit? Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., S227243, (opinion below F068526, 236 Cal.App.4th 1024). Review was granted 8/21/17.
Under FAA, Are Statutory Claims for Public Injunctive Relief Subject to Mandatory Arbitration? After the Court of Appeal reversed an order denying a petition to compel arbitration, the Supreme Court granted review on following issue: Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration? McGill v. Citibank, N.A., S224086, (opinion below G049838, 232 Cal.App.4th 753). Review was granted 4/1/15. Update 9/8/16: Oral argument scheduled for 10/6/16. Update 9/14/16: Case is to be called and continued to December 2016 calendar.
Who Determines Whether an Agreement Provides for Class Arbitration?
After the Court of Appeal found that the arbitrator should decide, and reversed an order in a civil action, the Supreme Court granted review on the following issue: Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue? Sandquist v. Lebo Automotive, Inc., S220812 (opinion below B244412, formerly 228 Cal.App.4th 65). Review was granted 11/12/14. Update 1/14/15: Review granted in Network Capital Funding Corp. v. Papke, S222638 (opinion below G049172, formerly 23 Cal.App.4th 503), with briefing deferred pending a decision in Sandquist. Update 4/1/15: Review granted in Rivers v. Cedar-Sinai Medical Care Foundation, S224592 (opinion below B249979, nonpublished), with briefing deferred pending Sandquist. Update 6/10/15: Review granted in Universal Protection Service, L.P. v. Superior Court, S225450, (opinion below D066919, formerly 234 Cal.App.4th 1128). Briefing is deferred pending a decision in Sandquist. Update 10/28/15: After the Third District Court of Appeal denying a petition seeking to challenge arbitration, the Court granted review in Universal Protection Service, LP v. Superior Court, S229442, (opinion below C078557, 239 Cal.App.4th 697). Briefing is deferred pending resolution of Sandquist. Update 4/1/16: Oral argument scheduled for 5/3/16. The briefs are here. Update 5/3/16: Case argued and submitted. Update 7/28/16: Opinion filed. In a 4-3 decision, the majority concluded that there was no universal presumption on this question, either in federal or state law, and so the issue must be addressed based on the terms of the specific contract at issue. The majority further concluded that the contract language here was sufficiently broad that it assigned to the arbitrator the task of deciding whether the agreement allowed for the arbitration of class actions, and thus affirmed the Court of Appeal’s decision. The dissent concluded that that recent federal cases indicated that classwide arbitrability is a gateway question for purposes of the FAA, and is therefore a question for the court.