Wednesday, November 30, 2016

A "new arbitration" is not an appeal

Image result for mulligans
An arbital mulligan is not an appeal.
Are you aware of "new arbitration" clauses? Apparently some contracts, especially auto sales contracts, not only have arbitration provisions, but also have "new arbitration" provisions. (E.g., Sanchez v. Valencia Holding Co. (2015) 61 Cal.4th 899, 915-917 ['new arbitration' clause is auto sales contract is enforceable].) So for example, in this case here (now published), the arbitration provision provided that "if the arbitrator's award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration under the rules of the arbitration organization by a three-arbitrator panel." After an arbitration before a single arbitrator who awarded $180K, the losing side invoked the 'new arbitration' provision. Going from a one-arbitrator decision to a do-over with three-arbitrators is a process that seemingly mirrors an appeal. The trial court refused to order the new arbitration because the arbitral forum lacked separate "appellate" rules. The Court of Appeal reverses, explaining that the arbitration agreement allows a do-over, repeat arbitration, which is not an "appeal." Q.E.D. Provision enforced.

Today's DJ features GMSR's Alana Rotter in Discovery Sanctions Can Be Tricky Business, about how "When it comes to appeals, 1 plus 1 does not necessarily equal 2," because "an order that imposes one sanction of $2,001 and another sanction of $3,000 is not the same as an order that imposes a sanction of $5,001. Under CCP 904.1(a)(11)-(12), the key to appealability is an order that exceeds $5,000.

On the SCOTUS front, from NLJ see Advocates Beware: Justices Don't Want You Sneaking New Issues Into Your Cases and Judge Posner Slams 'Stupid' Decisions by Chief Justice Roberts, 'Silly' Stances by Scalia.

And Beds' latest column is out, contradicting Shakespeare: Readiness is Not All, about his 200th column for The Recorder! Congrats on a fantastic run. We're looking forward to the next 200.