Latest Articles

As the U.S. Supreme Court observed memorably in First Options of Chicago, Inc. v. Kaplan,[1] arbitration disputes often raise “three types of disagreement” relevant to resolution of the dispute: (1) a disagreement as to the merits of the dispute; (2) a disagreement as to whether the dispute is subject to arbitration; and (3) a dispute as to who gets to decide, in the first instance, whether the dispute is subject to arbitration.  The Court…
Last week, a split Ninth Circuit panel in In re Hyundai and Kia Fuel Economy Litigation[1] vacated the certification of a nationwide class for settlement purposes because the district court failed to address choice-of-law issues and the variations in the relevant state laws, and also improperly “presumed” reliance on allegedly “misleading advertising.”  The case demonstrates the significant obstacles to certifying a nationwide class.  Judge Sandra Ikuta’s majority opinion, joined by Judge Andrew Kleinfeld, also…
Last week, a split Ninth Circuit panel in In re Hyundai and Kia Fuel Economy Litigation[1] vacated the certification of a nationwide class for settlement purposes because the district court failed to address choice-of-law issues and the variations in the relevant state laws, and also improperly “presumed” reliance on allegedly “misleading advertising.”  The case demonstrates the significant obstacles to certifying a nationwide class.  Judge Sandra Ikuta’s majority opinion, joined by Judge Andrew Kleinfeld, also…
As many practitioners who work with the Telephone Consumer Protection Act (TCPA) know, getting insurance providers to cover TCPA cases is a difficult proposition. The Ninth Circuit recently affirmed this notion in Los Angeles Lakers, Inc. v. Fed. Ins. Co., No. 15-55777, 2017 WL 3613340, at *2 (9th Cir. Aug. 23, 2017) (LA Lakers), swatting away the Lakers’ appeal of a dismissal of their suit against their insurance carrier for denying coverage of a TCPA…
The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court.  The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether a willful violation of the Fair Credit Reporting Act (“FCRA”), absent proof of actual damages, constituted sufficient harm to confer Article III standing to a FCRA plaintiff.  The Court ultimately declined to resolve the question,…
Defense counsel facing potential multimillion-dollar judgments from the threat of class action proceedings—particularly class actions brought under statutes providing for treble damages and attorney’s fees, such as the Racketeer Influenced Corrupt Organizations (RICO) Act, the Real Estate Settlement Procedures Act (RESPA), and the Telephone Consumer Protection Act (TCPA) —have gotten creative in their attempts to end class litigation before certification. For example, in Campbell-Ewald Company v. Gomez, 136 S. Ct. 663 (2016), the Supreme Court…
On Monday, May 15, 2017, the Supreme Court issued its latest reminder to state and lower federal courts that they must treat arbitration agreements as equally valid as all other contracts.  In Kindred Nursing Centers Limited Partnership v. Clark et al., 581 U.S. ___ (2017), the Court confronted a rule imposed by the Kentucky Supreme Court that barred contracts conferring broad “powers of attorney” — contracts that authorize individuals to act on behalf of, and…
The Supreme Court handed employers an important victory on Monday, holding that the phrase “changing clothes” in Section 203(o) of the Fair Labor Standards Act included protective gear and that time spent changing into and out of such gear need not be compensated where parties to a collective bargaining agreement (“CBA”) have so agreed. The Court’s ruling is largely consistent with the view of a majority of the federal circuit appellate courts that had previously…
The American Arbitration Association (“AAA”) issued new Arbitration Rules and Mediation Procedures governing commercial disputes for AAA commercial arbitrations initiated on or after October 1, 2013. Arbitration proceedings filed prior to October 1, 2013 continue to be governed by the Arbitration Rules & Mediation Procedures amended and effective June 1, 2010.  There are a number of significant changes to the Commercial Rules, many of which appear designed to add increased flexibility to the parties…