Defendant-appellee TAMKO Building Products, Inc. was a roof shingle manufacturer incorporated in Missouri. Plaintiffs-appellants were homeowners whose contractors installed Defendant's shingles on homeowner's roof. Plaintiffs filed suit alleging they were entitled to compensation for damage to their home caused by Defendant's faulty shingles and the expense of installing a new roof. Defendants moved to stay proceedings and compel arbitration pursuant to an arbitration agreement on the shingle's packaging. The trial court granted the Defendant's Motion to Stay Proceedings and Compel Arbitration concluding the Plaintiffs were charged with the knowledge of the contract even if they did not read it, that TAMKO did not waive its right to compel arbitration, and that the contract was not unconscionable. Plaintiffs appealed. The Oklahoma Supreme Court reversed, finding that the arbitration clause at issue in this case was printed on the shingles' wrapping, which was seen only by the contractors installing them. The wrapping was discarded once the shingles were unpackaged and placed on rooftops. The Supreme Court concluded the Homeowners were not bound by the arbitration agreement: "n implied agent whose sole authority is to select and install shingles does not have the authority to waive the principal's constitutional rights. Further, the intentional printing of an agreement to waive a constitutional right on material that is destined for garbage and not the consumer's eyes is unconscionable. The Homeowners never had an opportunity to make a knowing waiver of access to the courts." View "Williams v. TAMKO Building Products, Inc." on Justia Law

Federico Garcia, president of Mama Kio’s, entered into an agreement with Total Merchant Services (TMS) for credit-card financial services for the restaurant. Two months after opening Mama Kio’s, Garcia noticed that the bank deposits through TMS were considerably less than expected. TMS later discovered the cause was an improper code in its software that had failed to collect the tips authorized by the customers. The missing tips totaled approximately $14,000. TMS attempted to remedy the error by running the credit cards again for the uncharged tip amounts. However, the customers were charged not only for the uncollected tips but also for the entire charged amounts. More than three thousand customers’ transactions were double and/or triple billed, resulting in more than $400,000 taken from Mama Kio’s customers’ accounts. Mama Kio’s worked with the credit-card companies for more than a month to repair and mitigate the damages. Mama Kio’s was forced to close its restaurant for lack of customers. LAGB, LLC, a commercial landlord, filed suit against Mama Kio’s for breach of its lease contract and sought damages for rent, insurance, taxes, and capital improvements. LAGB also sued the companies that provided credit-card processing services to Mama Kio’s, alleging that the negligence of the credit-card processing companies caused Mama Kio’s to breach its lease with LAGB. Mama Kio’s filed a cross-claim against the credit-card processing companies, alleging misrepresentations and tortious interference with its business. The credit-card processing companies filed motions compelling LAGB and Mama Kio’s to arbitrate. The trial court granted the motions. The Mississippi Supreme Court determined that while the trial court did not err by compelling Mama Kio’s to arbitrate its cross-claims, it did err by compelling LAGB to arbitrate its claims. View "LAGB, LLC v. Total Merchant Services, Inc." on Justia Law

After the Board issued a decision in which it held that the public does not have a constitutional right to attend mandatory mediation and conciliation (MMC) proceedings, Gerawan filed a declaratory relief action seeking a judicial declaration that the Board's decision violates the right of public access protected under the federal and state Constitutions. A Gerawan employee also intervened in the same action.The Court of Appeal held that Gerawan lacked standing to challenge the Board's policy on First Amendment grounds. The court also held that there was no right of access under the federal and state Constitutions to on-the-record MMC proceedings. Accordingly, the court affirmed the judgment. View "Gerawan Farming, Inc. v. Agricultural Labor Relations Board" on Justia Law

After Cerner filed an action in state court against defendants, defendants removed the action to federal district court. Cerner moved to remand to state court, arguing that the removal was improper and that the federal court lacked subject matter jurisdiction over the action. The district court denied the motion to remand and held that it could exercise jurisdiction under 9 U.S.C. 205, which authorizes a defendant to remove to federal court an action previously filed in state court that relates to an arbitration agreement or award falling under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958.The Ninth Circuit reversed and held that this case was not related to an international arbitration agreement or award, as that term is used in section 205. Therefore, section 205 did not provide a proper basis for removal or for federal subject matter jurisdiction over this action. The panel held that the outcome of this case could not conceivably be affected by the arbitration awarded. Accordingly, the panel remanded with instructions to remand to state court. View "Cerner Middle East Limited v. Belbadi Enterprises" on Justia Law

In its 28 U.S.C. 1782(a) discovery application, ALJ sought a subpoena for documents from FedEx and deposition testimony of a FedEx corporate representative. ALJ alleged that FedEx Corp. was involved in contract negotiations and performance of two contracts between ALJ and FedEx International, a FedEx subsidiary. Each contract became the subject of commercial arbitration, one pending in Dubai, the other in Saudi Arabia. The arbitration in Saudi Arabia was dismissed. The district court denied ALJ’s application, holding that the phrase “foreign or international tribunal” in section 1782(a) did not encompass the arbitrations. The Sixth Circuit, reversed, noting that the Supreme Court provided guidance for interpretation of section 1782(a) in 2004. Considering the statutory text, the meaning of that text based on common definitions and usage of the language at issue, as well as the statutory context and history the court held that this provision permits discovery for use in the private commercial arbitration at issue. View "In re Application to Obtain Discovery for Use in Foreign Proceedings" on Justia Law

Plaintiff filed suit against Citigroup, alleging gender discrimination and whistleblower retaliation claims under several local, state, and federal statutes, including the Dodd‐Frank and Sarbanes‐Oxley Acts.The Second Circuit affirmed the district court's judgment and held that the district court appropriately compelled arbitration of all but plaintiffʹs Sarbanes‐Oxley claim, including her Dodd‐Frank whistleblower retaliation claim, because her claims fall within the scope of her employment arbitration agreement and because she failed to establish that they are precluded by law from arbitration. The court also held that plaintiff's Sarbanes‐Oxley claim was properly dismissed because the district court lacked subject matter jurisdiction over it inasmuch as plaintiff failed to exhaust her administrative remedies under the statute. View "Daly v. Citigroup Inc." on Justia Law

The Eleventh Circuit held that the district court order was final and its retention of jurisdiction to review the arbitrator's decision did not destroy the finality of the district court's ruling pertaining to the enforcement of the arbitral summonses. The court also held that the district court's determination that it had ancillary jurisdiction was appropriate. However, the magistrate judge improperly found jurisdiction on two additional grounds: (1) the district court appointed the arbitrator; and (2) the parties agreed to jurisdiction of the district court in their arbitration agreement.The court interpreted the plain meaning of Section 7 as (1) requiring summonsed non-parties to appear in the physical presence of the arbitrator as opposed to a video conference or teleconference; and (2) prohibiting pre-hearing discovery. In this case, the district court abused its discretion in enforcing the arbitral summonses because the court lacked power under Section 7 to order the witnesses to appear at the video conference and provide pre-hearing discovery. The court also held that the district court's order denying CIGNA's motion to enforce the Settlement Agreement and compel an accounting constitutes a post-judgment order that is final and appealable. The district court abused its discretion here by allowing the arbitrator to review the claims that have already been paid. Accordingly, the court reversed and remanded. View "Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc." on Justia Law

Almost two years into active litigation, defendants moved to compel arbitration of this class action brought on behalf of persons who employed the services of PMZ to buy or sell a residence. The court of appeal affirmed the denial of the motion. A motion to compel arbitration is properly denied when the moving party has waived its right to do so, Civ. Proc. Code, 1281.2(a). The California Supreme Court has identified relevant factors: whether the party’s actions are inconsistent with the right to arbitrate; whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; whether a party either requested arbitration close to the trial date or delayed for a long period before seeking a stay; whether a defendant seeking arbitration filed a counterclaim without asking for a stay; whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and whether the delay affected, misled, or prejudiced the opposing party. The trial court properly applied the factors; its determination that defendants’ delay of nearly two years constituted an unreasonably long period of time, and defendants’ explanation for their delay was unavailing, is “copiously supported by the evidence.” View "Spracher v. Paul M. Zagaris, Inc." on Justia Law

RDC is a direct purchaser and wholesaler of Remicade, the brand name of infliximab, a “biologic infusion drug” manufactured by J&J and used to treat inflammatory conditions such as rheumatoid arthritis and Crohn’s disease. For many years, Remicade was the only infliximab drug available. That position was threatened when the FDA began approving “biosimilars,” produced by other companies and deemed by the FDA to have no clinically meaningful differences from Remicade. RDC alleged that J&J sought to maintain Remicade’s monopoly by engaging in an anticompetitive “Biosimilar Readiness Plan,” which consisted of imposing biosimilar-exclusion contracts on insurers that either require insurers to deny coverage for biosimilars altogether or impose unreasonable preconditions governing coverage; multi-product bundling of J&J’s Remicade with other J&J drugs, biologics, and medical devices; and exclusionary agreements and bundling arrangements with healthcare providers. RDC’s own contractual relationship with J&J is limited to a 2015 Distribution Agreement, which is not alleged to be part of J&J’s Plan. The Agreement contains an arbitration clause, applicable to any claim “arising out of or relating to the Agreement. Reversing the district court, the Third Circuit held that RDC’s antitrust claims do “arise out of or relate to” the Agreement and must be referred to arbitration. View "In re: Remicade (Direct Purchaser) Antitrust Litigation" on Justia Law

Carol Dalon died in the care of Ocean Springs Health and Rehabilitation Center (OSHRC). As administrator of her estate, Carol’s son Emile Dalon, sued the center for wrongful death, alleging OSHRC and its employees negligently caused Carol’s death. The circuit court granted the defendants’ motion to compel arbitration, and Emile appealed. The Mississippi Supreme Court found Emile presented no evidence he lacked the opportunity to study the arbitration agreement and to inquire about its terms. Emile did not argue he was time pressured when signing the agreement. Additionally, the arbitration agreement explained that Emile had the right to seek legal counsel concerning the arbitration agreement. If Emile had concerns or questions about the arbitration agreement, he could have asked the facility, researched the question on his own, or hired an attorney to assist him. Emile argues he was forced to sign the arbitration agreement in order to get his mother the care she needed. The Court found this claim meritless, concluding Emile entered into the arbitration agreement knowingly and voluntarily. Therefore, the trial court made no reversible error in granting a motion to compel arbitration. View "Dalon v. MS HUD Ocean Springs LLC" on Justia Law