In light of the United States Supreme Court’s recent decision in Concepcion, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of the waiver being void as against public policy. Accordingly, we quash the Fourth District’s decision below and decline to answer the certified question as it is now moot.Will the US Supreme Court employ the same reasoning on Prop 8?
Between the initiation of this lawsuit and the Defendants’ invocation of the right to arbitrate, the Defendants answered the Complaint and Amended Complaint, responded to Plaintiff’s Statement of FLSA Claim, provided mandatory Rule 26 disclosures, propounded discovery requests upon the Plaintiff, responded to Plaintiff’s discovery requests, took her deposition, participated in discovery motions practice, obtained additional time to schedule depositions and complete discovery, and obtained an extension of the trial date.WHAT DO YOU DO? WHAT DO YOU DO?
It is no answer, either, to say that Defendants did not know about the agreement until three weeks before moving to compel arbitration. See Plows, 812 F. Supp. 2d at 1066; Ritzel Commc’ns, Inc., 989 F.2d at 969. That they were apparently subjectively unaware of where the arbitration agreement was located, and did not in fact find it until they undertook a paper file audit in connection with an unrelated case some seven months after this case began, does not help their argument. The fact that Defendants’ files were disorganized and the form was not where it was supposed to be is no excuse. It does not reflect diligence.It reflects that your case will not be going to arbitration.
"What we don't know at this point is what we don't know," Damian said, indicating that there may be assets Price did not disclose.Hmm, somehow seems much more reasonable when Melanie says it.
The Supreme Court in Concepcion expressly rejected the notion that the state law should not be preempted because the class action waiver would effectively shield the defendant from liability. See Concepcion, 131 S. Ct. at 1753 (“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for other reasons.” (citation omitted)). Pendergast’s attempts to distinguish Concepcion are unavailing.13State's rights anyone?
For the reasons set forth above, we conclude that we need not reach the questions of whether Florida law would invalidate the class action waiver in the parties’ contract because, to the extent it does, it would be preempted by the FAA. Under Concepcion, both the class action waiver and the arbitration clause must be enforced according to their terms.
CARLOS VEGA is a veteran homicide prosecutor, putting scumbags behind bars, sometimes for life.
His latest high-profile case: Antonio Rodriguez, the so-called Kensington Strangler, who was convicted Thursday of three counts of first-degree murder, rape and related offenses in the deaths of three women.
With his high-pressure job and a daughter who lives at home, you'd think Vega wouldn't have time for anything else.
But his city salary hasn't been enough to give his daughter and son the schooling he wanted for them. So, for 14 years, he's been juggling two jobs. His second gig? He's a UPS supervisor.
In fact, Vega is one of several prosecutors in the city who have taken on second jobs to make ends meet. Others have been bartenders or waiters. One assistant district attorney recently moved back into her parents' house.Note to Carlos -- don't move to South Florida!
"Although we're attorneys, we work for the city," Vega said. "We don't make the money that people think lawyers make."
When Andre Frings returned to his South Beach apartment from a trip to New York last December, his jaw dropped at what had happened to the historic building next door. The 1926 art deco edifice was completely gutted, the graceful façade gone. Frings suspected the developer had broken the Beach's historic preservation codes, so he filed a complaint. The city investigated and, sure enough, found that demolition had exceeded the scope of permits. The developer spent months making fixes.WTF?
Democracy at its finest, right? Not for Frings. Last month, the developer -- Brickell-based Jeffrey Schottenstein -- filed a lawsuit against the SoBe resident, seeking more than $15,000 for the egregious crime of reporting his problems to the city.
"It's ridiculous because I don't have any influence. I'm just a resident," Frings says. "All I did was write to the city about my concerns."
Andrew Hall, Schottenstein's attorney, says Frings was wrong to air his grievances when work was already underway. "Guys like this, they think they're smarter than everyone else," he says. "He doesn't care about the consequences of his actions."
Frings's attorney, Michael Schlesinger, has a different take on the suit. "It's a frivolous action brought solely to intimidate and punish [Frings]," he says.
We affirm the district court’s determination that the unconscionable cost and-fee-shifting provision forms a part of the arbitration agreement, and reverse the district court’s refusal to sever unconscionable sentence. We also reverse the district court’s determination that the set-off provision is unconscionable. Therefore, we reverse the district court’s dismissal of BB&T’s motion and remand it with instructions to sever the unconscionable clause and compel arbitration.I guess it's all up to Senator Franken to get his Arbitration Fairness Act passed (don't hold your breath).
The dismissal of Greenberg from nearly all things Rothstein is the talk of the cocktail circuit in South Florida's legal community.Hey, at least they're finally discussing something law-related.
A new survey found that Fortune 1,000 corporations are significantly less likely to arbitrate contract disputes today than they were in 1997. In the 1997 study, 85% of companies reported using arbitration in commercial contract disputes at least once during the prior three years. In 2011, however, only 60 percent of companies so reported. In contrast, the companies’ usage of mediation remained steady at around 80%.
The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration.Can someone let the Supremes know?
On its website, Princess Cruise Lines proclaims to the world, as one of its “core values,” that: “The safety and security of our passengers and employees is our most important responsibility.” The cruise line says that it recognizes crew members as its “greatest asset,” and shows its appreciation to them by making their “life onboard the best it can be.” It boasts of making “every effort possible to offer its crew members an enjoyable environment and a rewarding career.”
All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed.See kids, this is why you have to add this type of flavor to a well-pled complaint.
Princess Cruise Lines contends that we should reverse the district court’s denial of its motion to compel arbitration for two reasons. One of those reasons is its contention that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. This contention is a non-starter because, as the cruise line concedes, it asked the district court to decide for itself whether the dispute was subject to arbitration. Only when the matter was illuminated by the light of an unfavorable decision from the district court did the cruise line suddenly see that the court ought not have answered the question after all.In other words -- chutzpah.
The invited error doctrine stands for the common sense proposition that someone who invites a court down the primrose path to error should not be heard to complain that the court accepted its invitation and went down that path.
"Concepcion only said that you don’t knock out arbitration automatically,” Aaron Podhurst, the lead plaintiffs’ lawyer, said in an interview. “Concepcion said it’s a fact issue, so Judge King applied the facts. We have Judge King finding that in four different states, the arbitration agreements are unconscionable.”In other post-Labor Day news, Governor Scott has decided he really hates "regulations":
“Every dime a company spends on regulations is a dime they add to what you care about as a purchaser of a product or service,” he said. “You hear the stories. Why do we have to do this? What’s the benefit?
Simply put, Concepcion did not change the law of arbitration enforceability in the vast majority of the relevant states. For example, Concepcion changes nothing in states such as Florida, Georgia, Texas and others, where certain Plaintiffs reside. These states have never adopted a rule even closely resembling Discover Bank’s per se rule against class action waivers.What do you think -- does this argument hold water?
After oral argument in this case, the United States Supreme Court decided AT&T Mobility LLC v. Conception, No. 09-893, 2011 WL 1561956 (April 27, 2011). The district court’s order denying the motion to compel arbitration is VACATED, and this case is remanded to the district court for reconsideration in light of the Supreme Court’s opinion.And Wells Fargo immediately moved before Judge King to have the case against it dismissed for lack of jurisdiction.
Since March 2007, Middle Tennessee has been short one of its four U.S. District Court judges. Then, as now, Middle Tennessee should have four federal district court judges to share the responsibilities of adjudicating all of the civil actions and federal criminal matters filed in our 32-county region. With the fourth position vacant, more than 1,400 civil cases and more than 300 criminal cases involving over 550 criminal defendants must now be handled by the remaining three federal judges, taxing the judges and the federal court system.
Senior judges work part-time to assist in managing that caseload, and four magistrate judges conduct preliminary hearings on criminal matters and some of the civil trials by agreement of the parties. The vacancy of one of the four seats renders it difficult for the judges to handle the escalating caseload effectively. Placing this burden on the remaining judges can lead to a serious delay in the administration of justice in the Middle District of Tennessee.
President Barack Obama has had fewer judges confirmed to the bench than any president at this point in his tenure since Richard Nixon nearly 40 years ago.With our do-nothing Congress, is there any reason to expect some confirmations before it adjourns?
The agency responded by releasing a detailed report last year that found that the agency’s scientific reviewers had repeatedly and unanimously over many years declared Menaflex unworthy of approval, but that they had been overruled by agency managers after political pressure from four Democrats from New Jersey — Senators Robert Menendez and Frank R. Lautenberg and Representatives Frank Pallone Jr. and Steven R. Rothman. The report also concluded that Dr. Andrew C. von Eschenbach, then the agency’s commissioner, had become inappropriately involved in the decision, and that agency procedures had been bypassed.
All four lawmakers made their inquiries about Menaflex after receiving significant campaign contributions from ReGen, which is based in Hackensack, N.J. Dr. von Eschenbach and the four lawmakers said they acted properly.God I'm beginning to sound like an ass.
This matter is for some inexplicable reason back before the Court after having a bench trial under 9 U.S.C. § 4, after the Court’ Findings of Fact and Conclusions of Law were prepared, and after the Court dismissed the case in favor of contractually required arbitration. The pending motion to reopen the case [D.E. 71] was filed after the Defendant persistently refused to timely pay its share of the arbitrator’s fee, which resulted in the arbitrator dismissing the proceedings. Not surprisingly, Plaintiff quickly proceeded back to this Court to reopen the case alleging that Defendant defaulted/waived its contractual right to proceed with arbitration.Judge Torres also rightly notes:
Defendant, also not surprisingly, opposes the motion arguing that it tried to cure its default on payment to the arbitrator, that Plaintiff is the one who is preventing them from curing, and that Defendant is still ready, willing and able to proceed with arbitration but likely before a different arbitrator or utilizing a different but comparable arbitration procedure.
The Court is frankly disappointed to have to deal with this case again after having dealt extensively with the parties and the issues they raised. Even though Defendant carried the day in those earlier proceedings by the skin of its teeth in convincing the Court to enforce an arbitration agreement that was encumbered with a material scrivener’s error, and an agreement that was not even found until the first day of trial scheduled under § 4 of the FAA, Defendant was so overwhelmed with excitement over its procedural victory that it forgot the most elementary and basic of tasks necessary to carry out that arbitration that it fought for – paying the arbitrator’s fee. Now the arbitrator that the parties contractually agreed upon in the employment agreement in question refuses to open the case without the Plaintiff’s consent. And the Plaintiff does not consent, most likely because he never wanted to arbitrate this case in the first place.
Faced with this record, the Court could simply scoff at the problem, deny the motion, and force the Plaintiff to try again to get the Defendant to abide by its contractual responsibilities. But the question that must first be answered is why? Why under these circumstances, when the Plaintiff claims that he has a statutory right to seek relief under the laws of the United States, would a federal court turn him aside again in favor of arbitration when the party who demanded that arbitration in the first place so cavalierly ignored Plaintiff’s right to speedy resolution of statutory claims when the Court’s eyes looked elsewhere? To ask the question is to answer it.
The irony, of course, is that these supposed benefits of arbitration versus litigation are utterly lost in a case, such as this, filed in November 2008 that still has not gotten off the ground because of disputes over arbitration. We note as well that most FLSA cases filed in our Court are resolved routinely within nine months. But we digress.Don't digress!
The Bar’s international law section, hopes the bill and new rule will prompt more companies to use Miami as their seat for arbitration because attorneys all over the world are familiar with the UNCITRAL model.Got it......commies!
With South Florida’s high concentration of bilingual professionals and easy access to Latin America, it’s a convenient spot to conduct international arbitration, he said.
“The whole vantage point here is an international one,” Palmer said. “You have to be very mindful of what someone in London thinks, what someone in Stockholm thinks. There’s no particular problem with the old law. Just nobody knows what it is. Everyone in international arbitration knows this law.”
Now I know why they don't want cameras recording Supreme Court arguments.Justice Scalia's questions yesterday showed that he has little empathy for those who find themselves in the position of signing extremely one-sided arbitration agreements because of unequal bargaining power, often as a precondition of employment or the receipt of essential goods and services. Here's what he said:
JUSTICE SCALIA: you can be a stupid person who voluntarily signs an unconscionable contract. Now, the courts may protect you because you are stupid, but you haven't been coerced.
That's an actual quotation from the argument, not a caricature. I suppose this means that, in Justice Scalia's world, a person who takes a low-wage job as a dishwasher, say, or as a line worker at a chicken processing plant, because it's the only job he or she can get, is simply "stupid" if they sign an employment contract containing various unconscionably one-sided terms.
The Senate voted unanimously Thursday for Ferrer, a one-time federal prosecutor in Miami and senior aide to former Attorney General Janet Reno. He most recently oversaw federal litigation for the Miami-Dade County Attorney's Office.
McCaskill said a total of about 80 nominees have passed through various committees without objection but have been held up on the Senate floor by various GOP senators who are trying to use them as bargaining chips.I know swlip -- BORK BORK BORK! -- but this is out of hand.
Again, though we view the result in this case to be, in effect, a reformation of a contract based upon a unilateral mistake (which under traditional contract principles would not allow for reformation at law), arbitration agreements are widely and broadly enforced in the Eleventh Circuit. Equitable principles may be applied to enforce such an agreement against a signatory even though a writing technically does not exist with a non-signatory. This is such a case based upon existing Eleventh Circuit precedent. We have no choice but to apply it, leaving to our Court of Appeals to decide if the result in this case requires a change in direction.What do you all think?
After review and oral argument, we determine conflicting decisions in the Florida intermediate appellate courts require that we certify certain questions to the Florida Supreme Court.HAHAHAHA, oh 11th Circuit you make me laugh!
Our review of Florida law confirms the district court’s interpretation of Florida law as requiring a showing of both procedural and substantive unconscionability. Precedent from the Florida Third District Court of Appeal consistently requires a showing of both procedural and substantive unconscionability. Hialeah Auto., LLC v. Basulto, __ So.2d __, No. 3D07-855, 2009 WL 187584, at *2 (Fla. 3d Dist. Ct. App. Jan. 28, 2009) (“Our court has said that, to invalidate a contract for unconscionability ‘under Florida law, a court must find that the contract is both procedurally and substantively unconscionable.’”) (quoting Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1134 (Fla. 3d Dist. Ct. App. 2006)); see also Golden v. Mobil Oil Corp., 882 F.2d 490, 493 (11th Cir. 1989) (stating in a commercial lease setting that Florida courts require a plaintiff to show both procedural and substantive unconscionability). Decisions from other Florida appellate districts also consistently require a showing of both procedural and substantive unconscionability. E.g., Bland v. Health Care & Retirement Corp. of Am., 927 So.2d 252, 256 (Fla. 2d Dist. Ct. App. 2006); Fonte v. AT&T Wireless Servs., Inc., 903 So.2d 1019, 1025 (Fla. 4th Dist. Ct. App. 2005); Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st Dist. Ct. App. 1999).I can't be certain, but I believe this is a genteel Atlantan way of saying "once again, Florida case law is hopelessly screwed up on this issue."
Nonetheless, there is some tension in Florida law regarding the analytical framework courts should use in evaluating both procedural and substantive unconscionability. Must courts evaluate both prongs simultaneously in a balancing exercise, or may courts stop the analysis after finding either procedural or substantive unconscionability to be independently lacking?
Some Florida courts appear to reject the procedural-plus-substantive unconscionability requirement as a rule of law or use a balancing or sliding scale approach. Steinhardt v. Rudolph, 422 So.2d 884, 889 (Fla. 3d Dist. Ct. App. 1982) (stating that although most courts take a “balancing approach” requiring “a certain quantum of procedural plus a certain quantum of substantive unconscionability,” the “procedural-substantive analysis is . . . only a general approach to the unconscionability question and is not a rule of law”) (quotation omitted and emphasis added); Fonte, 903 So.2d at 1025 (“‘The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree . . . .’”); Romano v. Manor Care, Inc., 861 So.2d 59, 62 (Fla. 4th Dist. Ct. App. 2003) (stating “[e]ssentially a sliding scale is invoked” and “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa”).
Other Florida courts do not use, and some in fact never mention, a balancing or sliding scale approach and assess procedural and substantive unconscionability independently, concluding that if one part of the unconscionability test is not established, the other part need not be examined at all. Bland, 927 So.2d at 257 (“This court, however, eschews the ‘sliding scale’ approach. Rather, we assess procedural unconscionability and substantive unconscionability independently.”); Nat’l Fin. Servs., L.L.C. v. Mahan, 19 So.3d 1134, 1136-37 (Fla. 3d Dist. Ct. App. 2009) (“Because the arbitration provisions in this case suffered from no procedural malady, we do not reach the question of substantive unconscionability.”); Belcher v. Kier, 558 So.2d 1039, 1045 (Fla. 2d Dist. Ct. App. 1990) (stating “the court must view unconscionability in a two-pronged approach, i.e., procedural unconscionability and substantive unconscionability” and “because the appellees were unable to carry their burden as to both prongs, the ruling in their favor cannot stand.”); see also Hialeah, __ So.2d __, 2009 WL 187584, at *5 n.4 (“Speaking for himself, the writer of the opinion suggests that in an appropriate future case, this court should reconsider Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131 (Fla. 3d Dist. Ct. App. 2006) . . . . Although the requirement for both procedural and substantive unconscionability has been repeated in a number of arbitration cases in recent years, I respectfully suggest that holding is (a) illogical, and (b) inconsistent with this court’s decision in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d Dist. Ct. App. 1982).”) (Cope, J.).
