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Archive for the ‘Substantive Arbitrability’ Category

OTO LLC v. Kho: U.S. Supreme Court Denies Certiorari | International Institute for Conflict Prevention and Resolution Interviews Philip J. Loree Jr. and Richard D. Faulkner About the Denial

June 10th, 2020 Arbitrability, Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, California Supreme Court, Challenging Arbitration Agreements, Enforcing Arbitration Agreements, FAA Chapter 1, Federal Arbitration Act Section 2, Gateway Disputes, Gateway Questions, International Institute for Conflict Prevention and Resolution (CPR), Substantive Arbitrability, Unconscionability, United States Supreme Court Comments Off on OTO LLC v. Kho: U.S. Supreme Court Denies Certiorari | International Institute for Conflict Prevention and Resolution Interviews Philip J. Loree Jr. and Richard D. Faulkner About the Denial
OTO LLC v. Kho

On June 8, 2020 the United States Supreme Court declined to review OTO LLC v. Kho, a controversial decision of the California Supreme Court, which held that an arbitration agreement was, in the circumstances, unconscionable to the extent that it purported to require an employee to arbitrate wage claims.

The California Supreme Court held that the agreement in OTO was both procedurally and substantively unconscionable under California law, and its decision that the agreement was substantively unconscionable turned on how the agreement’s procedures were less streamlined, and more akin to litigation procedures, than those available under California’s so-called Berman administrative hearing scheme, which California uses to resolve wage claims.

Also on June 8, 2020, CPR Speaks, the blog of the International Institute for Conflict Prevention and Resolution (“CPR”) published an excellent post on OTO, written by Harvard Law School student and CPR Intern Seorae Ko. The post explains the background of the case in more detail and discusses the arguments advanced in favor of and in opposition to the petition for certiorari.

On June 9, 2020, our friend and colleague Russ Bleemer, Editor of Alternatives to the High Cost of Litigation, CPR’s newsletter, interviewed our friend and colleague Richard D. Faulkner, an arbitrator, arbitration-law practitioner, and former trial judge, and the author, Philip J. Loree Jr., about the OTO denial of certiorari and what it means for practitioners. As always, Russ did a great job conducting the interview.

Today, June 10, 2020, CPR posted that video conference interview on CPR Speaks, and you can watch it HERE.

Contacting the Author

If you have any questions about this article, the interview, arbitration, arbitration-law, or arbitration-related litigation, then please contact Phil Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation.

Loree & Loree represents private and government-owned-or-controlled business organizations, and persons acting in their individual or representative capacities, and often serves as co-counsel, local counsel or legal adviser to other domestic and international law firms requiring assistance or support.

Loree & Loree was recently selected by Expertise.com out of a group of 1,763 persons or firms reviewed as one of Expertise.com’s top 18 “Arbitrators & Mediators” in New York City for 2019, and now for 2020. (See here and here.)

ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.

Photo Acknowledgment

The photo featured in this post was licensed from Yay Images and is subject to copyright protection under applicable law.

The Businessperson’s Federal Arbitration Act FAQ Guide III: Pre-Award Litigation under Chapter 1 of the Federal Arbitration Act—Gateway Disputes about Whether Arbitration Should Proceed (Part II)

February 4th, 2020 Arbitrability, Arbitrability | Clear and Unmistakable Rule, Arbitrability | Existence of Arbitration Agreement, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Authority of Arbitrators, Businessperson's FAQ Guide to the Federal Arbitration Act, Enforcing Arbitration Agreements, FAA Chapter 1, FAA Preemption of State Law, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Federal Policy in Favor of Arbitration, First Principle - Consent not Coercion, Gateway Disputes, Gateway Questions, McCarran-Ferguson Act, Moses Cone Principle, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Presumption of Arbitrability, Procedural Arbitrability, Questions of Arbitrability, Small Business B-2-B Arbitration, Stay of Litigation, Substantive Arbitrability 2 Comments »
gateway disputes

Gateway disputes, which concern whether parties are required to arbitrate a dispute on the merits, are the principal subject of pre-award Federal Arbitration Act litigation. In the last segment of this series, Gateway Disputes about Whether Arbitration Should Proceed (Part I), we answered a number of FAQs concerning gateway disputes, including who gets to decide those disputes:  

  1. What is the Difference between Pre-Award and Post-Award Litigation under the Federal Arbitration Act?
  2. What are Gateway Questions?
  3. Who Decides Gateway Questions?
  4. How do Parties Clearly and Unmistakably Agree to Submit Questions of Arbitrability to Arbitrators?
  5. Are there any Arbitrability Disputes that Courts Decide when the Contract at Issue Clearly and Unmistakably Provides for the Arbitrator to Decide Questions of Arbitrability?

Today we’ll answer some more FAQs about how gateway disputes are decided (or at least are supposed to be decided) by courts and arbitrators:

  1. What is the Presumption of Arbitrability?
  2. Does the Presumption of Arbitrability Apply to all Questions of Arbitrability?
  3. What Law Applies to Determine Gateway Disputes about Arbitrability to which the Presumption of Arbitrability does not Apply?
  4. How is Presumption of Arbitrability Applied to Resolve Gateway Questions about the Scope of an Arbitration Agreement?
  5. What Defenses, if any, Can Parties Assert against Enforcement of an Arbitration Agreement, and what Law Governs these Defenses?

The answers to these questions, along with the answers provided in Part I, will provide you with a solid foundation for understanding how pre-award Federal Arbitration Act litigation works and what to expect if your business is or becomes embroiled in it. The next segment will answer FAQs about the nuts and bolts of pre-award Federal Arbitration Act practice and procedure under Sections 2, 3, and 4 of the Act.

What is the Presumption of Arbitrability?

Back in 1983 the U.S. Supreme Court, in the landmark decision Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), famously declared that “[t]he [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” 

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