As the U.S. Supreme Court observed memorably in First Options of Chicago, Inc. v. Kaplan, 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 of Appeals for the Eleventh Circuit recently waded into this latter question, creating a circuit split with decisions by four other sister circuit courts of appeals. While a majority of circuit courts have held that an arbitration agreement’s incorporation of an arbitration forum’s rules can reflect the parties’ “clear and unmistakable” intent to delegate questions of arbitrability to the arbitrator, these four other circuits have held that incorporation of forum rules does not include delegation of authority to decide whether the parties’ agreement permits class arbitration. The Eleventh Circuit disagrees.
The Ninth Circuit is at it again, blazing a different path than its sister circuits. In Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir. 2018), the Court reversed a district court’s order that denied class certification on the grounds that the sole evidence offered in support was a self-serving declaration that included unauthenticated documents and improper opinion testimony and was therefore inadmissible. In ruling that evidence offered in support of class certification need not be admissible at trial, the Ninth Circuit has arguably shown again why its reputation as one of the most plaintiff-friendly jurisdictions is well-deserved.
This article addresses (1) the Sali Court’s analysis and holding, (2) how Sali directly conflicts with most other circuits, and (3) the impact this ruling is likely to have on class action defendants in the Ninth Circuit.
California companies housing their drivers’ personal information may feel less exposed to liability in light of the Northern District of California’s holding in Antman v. Uber Technologies, Inc. in May. The trial court in Antman found that Uber was not liable to its drivers after hackers illicitly accessed their personal information through Uber’s computer system.
Plaintiffs Sasha Antman and Gustave Link alleged that the company failed to protect their personal information, as well as that of a putative class of individuals similarly situated. Plaintiffs stated claims for violation of California’s Unfair Competition Law (UCL), negligence, and breach of implied contract.
Attorneys general (AGs) are not only lawyers for their states; they are enforcers, regulators, and even public policy advocates. With a broad consumer protection mandate, a state AG is able to reach a wide range of industries that have a consumer touch. When joining in multi-state actions, and even more so those with public policy implications, AGs have a significant voice nationally to affect interests of business. We attended a series of multi-state AG meetings in June that highlighted three areas emblematic of these issues and powers.
Senators, governors and state attorneys general are racing their campaigns toward election. While appealing to voters, attorney general candidates will inevitably target industries with positions and promises of using their state enforcement powers. How AGs will fare is partly a question of public policy, as seen, for example, with issues of data privacy, opioids and consumer finance. And businesses should consider the proactive engagement of state AGs on both legal and political levels.