"A statute of repose, as opposed to a statute of limitation, with a few exceptions, means that no matter when the claimed defect is 'discovered,' the claim is barred if not brought within a specific period of time after substantial completion", explain lawyers with Bradley Arant. In contrast, statutes of limitations generally don't start running until the plaintiff discovered, or should have discovered, the facts supporting the claim.
The lawyers say a recent arbitration panel ruled that Tennessee's four-year statute of repose did not apply in arbitration, and that other arbitrators and courts have ruled similarly about various states time bars.
Tuesday, May 21, 2019
Did Arbitration Save Uber $80 Million?
Did Uber's payout to its drivers fall by $80 million due to an enforceable arbitration clause? That's the impression given by Johana Bhuiyan in the LA Times:
"Uber agreed to pay $20 million to settle lawsuits challenging the classification of drivers as independent contractors, rather than employees owed the benefits of traditional employment.
The payout is a far cry from the $100 million Uber had agreed to pay to settle the suit in 2016, after a San Francisco judge granted 385,000 drivers in California and Massachusetts class-action status. Eventually, a judge determined $100 million was not sufficient given the original class size.
But an appeals court ruling found Uber’s mandatory arbitration agreements — which obligate workers to settle their claims with the company one-on-one — were largely valid and enforceable.
That ruling, and Uber’s decision in May to maintain its policy of upholding its arbitration clause in cases unrelated to sexual misconduct, ultimately reduced the class to about 13,600 drivers, who had either opted not to agree to mandatory arbitration or drove for Uber before the company implemented such a policy."
Shannon Liss-Riordan, the plaintiffs' lawyer representing drivers, is running for U.S. Senate in a primary challenge to Massachusetts Democrat Ed Markey.
"Uber agreed to pay $20 million to settle lawsuits challenging the classification of drivers as independent contractors, rather than employees owed the benefits of traditional employment.
The payout is a far cry from the $100 million Uber had agreed to pay to settle the suit in 2016, after a San Francisco judge granted 385,000 drivers in California and Massachusetts class-action status. Eventually, a judge determined $100 million was not sufficient given the original class size.
But an appeals court ruling found Uber’s mandatory arbitration agreements — which obligate workers to settle their claims with the company one-on-one — were largely valid and enforceable.
That ruling, and Uber’s decision in May to maintain its policy of upholding its arbitration clause in cases unrelated to sexual misconduct, ultimately reduced the class to about 13,600 drivers, who had either opted not to agree to mandatory arbitration or drove for Uber before the company implemented such a policy."
Shannon Liss-Riordan, the plaintiffs' lawyer representing drivers, is running for U.S. Senate in a primary challenge to Massachusetts Democrat Ed Markey.
Consumer Arbitration Radvocate and Data on AAA Consumer Arbitrations
Radvocate says it "is not a lawyer or a law firm. Radvocate is a service that automates companies' dispute resolution processes to help you bring consumer arbitrations." Alison Frankel at Reuters describes Radvocate as a "legal tech startup" while citing its analysis of American Arb. Ass'n (AAA) data on the number of consumer arbitrations.
Frankel writes that a "mere 895 consumer arbitrations were resolved by AAA in the first quarter of 2019" but "That’s the third-highest quarterly number since 2016." Frankel continues: "the company that resolved the most arbitration claims in the first quarter of 2019 was AT&T, which, together with its subsidiary DirecTV, completed 111 consumer arbitrations in the timeframe. Citibank resolved 44 cases; Credit One, 40; and Comcast, 36."
HT Tom Witherspoon
Frankel writes that a "mere 895 consumer arbitrations were resolved by AAA in the first quarter of 2019" but "That’s the third-highest quarterly number since 2016." Frankel continues: "the company that resolved the most arbitration claims in the first quarter of 2019 was AT&T, which, together with its subsidiary DirecTV, completed 111 consumer arbitrations in the timeframe. Citibank resolved 44 cases; Credit One, 40; and Comcast, 36."
HT Tom Witherspoon
Partisan Divide in SCT Arbitration Cases
The partisan divide in Supreme Court arbitration cases continued this spring with Lamps Plus Inc. v. Varela, No. 17-988 (April 24), in which the 5 justices appointed by Republican presidents comprised the majority and the 4 justices appointed by Democratic presidents dissented. When the SCT agreed to take the case last year, I wrote "The US Chamber of Commerce wants the Ninth Circuit reversed... Public Citizen predictably opposes the Chamber on this case."
The Ninth Circuit had affirmed interpreting the arbitration agreement to authorize class arbitration, by distinguishing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 55 U.S. 662 (2010), which held that an agreement's silence on class arbitration was not enough to authorize it. In Lamps Plus, the Ninth Circuit found agreement to class arbitration in contract language stating that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” and a description of the substantive claims subject to arbitration.
But Chief Justice Roberts' majority opinion ruled this contract language merely ambiguous and thus “cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.”
Justice Ginsburg's dissent said “mandatory individual arbitration continues to thwart ‘effective access to justice’ for those encountering diverse violations of their legal rights.”
Interestingly, Justice Thomas, who ordinarily opposes FAA preemption of state law, wrote a separate concurrence nevertheless joining his fellow conservatives in finding such preemption here.
Lots of good commentary on the case linked by Edith Roberts at SCOTUSblog
The Ninth Circuit had affirmed interpreting the arbitration agreement to authorize class arbitration, by distinguishing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 55 U.S. 662 (2010), which held that an agreement's silence on class arbitration was not enough to authorize it. In Lamps Plus, the Ninth Circuit found agreement to class arbitration in contract language stating that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” and a description of the substantive claims subject to arbitration.
But Chief Justice Roberts' majority opinion ruled this contract language merely ambiguous and thus “cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.”
Justice Ginsburg's dissent said “mandatory individual arbitration continues to thwart ‘effective access to justice’ for those encountering diverse violations of their legal rights.”
Interestingly, Justice Thomas, who ordinarily opposes FAA preemption of state law, wrote a separate concurrence nevertheless joining his fellow conservatives in finding such preemption here.
Lots of good commentary on the case linked by Edith Roberts at SCOTUSblog
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