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Musick Peeler’s Business Litigation Group represents clients in a wide variety of business and corporate litigation matters.

NINTH CIRCUIT VACATES JAMS ARBITRATION AWARD DUE TO ARBITRATOR’S FAILURE TO DISCLOSE OWNERSHIP INTEREST IN ADR SERVICES PROVIDER Copy

On October 22, 2019, the Ninth Circuit Court of Appeals entered an opinion in Monster Energy Co. v. City Beverages, LLC, No. 17-55813, 2019 WL 5382062 (9th Cir. Oct. 22, 2019) vacating an arbitration award issued by a JAMS arbitrator for failure to disclose that: (1) the arbitrator was a co-owner of JAMS, and (2) the winning party had several prior cases with JAMS.  The Ninth Circuit determined that the failure to disclose these points justified vacatur of the ...

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NINTH CIRCUIT VACATES JAMS ARBITRATION AWARD DUE TO ARBITRATOR’S FAILURE TO DISCLOSE OWNERSHIP INTEREST IN ADR SERVICES PROVIDER

On October 22, 2019, the Ninth Circuit Court of Appeals entered an opinion in Monster Energy Co. v. City Beverages, LLC, No. 17-55813, 2019 WL 5382062 (9th Cir. Oct. 22, 2019) vacating an arbitration award issued by a JAMS arbitrator for failure to disclose that: (1) the arbitrator was a co-owner of JAMS, and (2) the winning party had several prior cases with JAMS.  The Ninth Circuit determined that the failure to disclose these points justified vacatur of the ...

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Update: How to Draft a Settlement Agreement with Payments

At last, a California appellate decision has provided clear instructions on how to draft a settlement agreement with payments secured by a judgment that will stand up in court. In a 2015 note, we discussed the law at that time on this topic and suggested how to draft an agreement that will withstand challenge.  The recent decision in Red & White Distribution, LLC v. Osteroid Enterprises, LLC, 2019 DJDAR 7516 (August 9, 2019), validates our advice and provides a ...

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Autodialers Under the Telephone Consumer Protection Act: Will There be Certainty Soon? (Part II)

This is part two of a continuing series on the definition of an automatic telephone dialing system (“ATDS”) pursuant to the Telephone Consumer Protection Act of 1991 (“TCPA”). Refer to part one for a more detailed discussion of ACA Int’l v. Fed. Commc’ns Comm’n (“ACA International”), 885 F.3d 687 (D.C. Cir. 2018) and subsequent Circuit Court opinions.

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Autodialers Under the Telephone Consumer Protection Act: Will there be Certainty Soon? (Part I)

(First in a Series on the TCPA’s ATDS Definition)

The Telephone Consumer Protection Act of 1991 (“TCPA”) protects consumers from unwanted nuisance calls by limiting the use of an automatic telephone dialing system (“ATDS”) or prerecorded calls. Since its enactment, courts and the FCC have been battling over the definition of an ATDS.

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California Legislature Clarifies the Rules for Non-California Counsel to Participate in International Arbitrations Seated in California

On 18 July 2018, California Governor Jerry Brown signed Senate Bill 766, which amends the California International Arbitration and Conciliation Act (Cal. Civ. Proc. Code § 1297.11 et seq.) to expressly allow out-of-state and non-U.S. lawyers to represent and assist parties in international arbitration or related proceedings seated in California. Senate Bill 766 brings clarity to the issue of non-California attorneys participating in international arbitration and related proceedings within the State of California.

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Impact of Tax Reform on Confidentiality Provisions in Sex Harassment Cases

A repercussion of the #MeToo movement is a new provision in the recently enacted amendments to the Federal Tax Code. Section 13307 of the newly revised tax code denies tax deductions for settlements and attorney’s fees subject to nondisclosure agreements paid in connection with sexual harassment or sexual abuse. While the proposition seems simple on its face, it raises a multitude of questions.

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Aircraft Used as Unscheduled “Air Taxis” Held Fully Taxable in California

Several states have eliminated or severely restricted personal property taxes but California still imposes them on many assets, including aircraft. California’s Constitution requires local governments to collect these taxes which, along with fuel taxes and sales and use taxes, account for millions of dollars of tax revenue annually in California derived from the aviation industry.

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Hot Air Balloon Operator Is Not A Common Carrier Under California Law

In a case of first impression, Grotheer vs. Escape Adventures, Inc., the California Court of Appeal held that a hot air balloon tour operator is not a common carrier under California law and thus does not owe its passengers a heightened duty of care.   The appellate court opinion, issued on August 31, 2017, upheld summary judgment entered by the trial court in favor of the tour operator respecting a negligence claim asserted by a plaintiff injured during a ...

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TCPA Claims Not Covered as Violation of Right to Privacy Under Personal Injury Provision Where There Is No Publication To Third Parties

In Yahoo! Inc. v. National Union Fire Insurance Company of Pittsburgh, PA (June 2, 2017) 2017 WL 2405025, the District Court for the Northern District of California addressed the scope of coverage for lawsuits alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), under personal and advertising injury coverage for “oral or written publication, in any manner, of material that violates a person’s right of privacy” contained in a Commercial General Liability policy.

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Has The Erosion Of The Parol Evidence Rule In California Impaired Banks’ Ability To Enforce The Terms Of Their Loan Documents?

In contract disputes in California courts, the Parol Evidence Rule (codified in California Code of Civil Procedure section 1856) prohibits evidence of promises or representations that are contrary to the written terms of a contract that was intended to be a complete and final statement of the parties’ agreement.  For decades (since the 1935 case of Bank of America v. Pendergrass), financial institutions relied on athe Parol Evidence Rule to prohibit borrowers from making claims or defenses based on the lender’s alleged false promises or misrepresentations that contradict the terms of the loan documents.

In 2013 and the years that followed, the California Supreme Court and Courts of Appeaal issued several decisions that have eroded the Parol Evidence Rule’s strict prohibition against evidence of alleged false promises that contradict the terms of a written contract.

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Is The Flintco Case A Setback For General Contractors?

Nearly 60 years ago, the esteemed Justice Traynor of the California Supreme Court authored an opinion in a seminal case applying the doctrine of promissory estoppel to the competitive bidding process.  Drennan v. Star Paving Company, (1958) 51 Cal.2d 409.  At the time this case was decided, the competitive bidding process was far simpler than it is today.  

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Private Jury Trials Offer Litigants Distinct Advantages Over Public Jury Trials

Recently, the option of a private jury trial has been elected by litigants as the preferable means to gain control of trial proceedings.  The parties have the ability to select the judge, the bailiff, discovery limitations, rules of civil procedure and evidence, controlling law, length of trial, timing of trial commencement, orders of confidentiality, measures of security, and the finality of a decision.  Seeing that complex cases may take years to wind their way through trial and the appellate process at tremendous expense, the finality of decision holds a cost-benefit appeal for both sides.

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TCPA Update – Amendment Exempting Federal Debts Held Retroactive

The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227, prohibits certain calls made using automated dialing systems, commonly called “robocalls.”  In December, 2015, Musick, Peeler & Garrett’s Business Litigation Notes reported on an amendment included in the 2015 Federal Budget Act that exempted from the TCPA calls made in connecation with “collection of a debt owed to or guaranteed by the United States.”

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The Trend Away From Per Se Treatment In Antitrust Litigation

A company can inadvertently become involved in antitrust litigation under section 1 of the Sherman Act (or any state law equivalent), and therefore, it should be aware of the current landscape.  Most often, antitrust litigation under section 1 of the Sherman Act involves allegations that a certain company’s or companies’ conduct hinders competition in the given industry or marketplace.

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Supreme Court Resolves Important Class Action Issue (For The Moment)

The recent U.S. Supreme Court decision Campbell-Ewald v. Gomez is critical for businesses battling class action lawsuits.
1.   Class Plaintiff Settlement Offers

In recent years, creative defense counsel have attempted to defeat potentially expensive class action litigation by “picking off” lead class representatives, especially in situations where plaintiffs’ attorneys may not easily be able to locate another viable class representative.  

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New TCPA Amendments Exempt Collection Of Federal Debts

The 2015 legislation that approved the federal budget included a significant amendment to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C., Section 227. The recent amendments, effective November 2, 2015, exempt certain businesses from the TCPA for calls made in connection with “collection of a debt owed to or guaranteed by the United States.” The amendments also call upon the FCC to issue regulations interpreting the new provisions within nine months, so the meaning of the ...

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TCPA Update — FCC Issues Long-Awaited Rulemaking/Order

The April 30, 2015 edition of Business Litigation Notes explained the potential danger under the TCPA of automating your customer contacts.  That article noted that the Federal Communications Commission had not yet issued its order further defining certain ambiguous issues under the TCPA.  On July 10, 2015, the FCC issued its declaratory ruling and order.  Despite vigorous dissents from two of the FCC commissioners, the FCC’s order significantly expands the definition of “automated telephone dialing system” and ...

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Thinking of Automating Your Customer Contacts? Beware the TCPA

1.             BACKGROUND The Telephone Consumer Protection Act (“TCPA”), also known as the “Robocall Law,” is a federal law that was initially enacted to regulate telemarketing calls.  However, in recent years aggressive plaintiffs’ lawyers have exploited ambiguities in the law in order to bring often crippling class action litigation against a host of companies – well beyond the telemarketing context Congress initially contemplated.  TCPA class action litigation has exploded in the past several years.  Over 2,000 TCPA ...

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