U OF O LAW SCHOOLMIKE TEDESCO

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ARBITRATION CLASS 3

• SEPTEMBER 3, 2008
• LIMITS OF ARBITRATION
• EVIDENCE

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THE EFFECT OF GARDNER-DENVER

• GARDNER DENVER ALLOWS A UNION EMPLOYEE TO GO INTO
  COURT EVEN THOUGH THEY GRIEVED EMPLOYMENT
  DISCRIMINATION THROUGH A LABOR AGREEMENT
• DISTINGUISHED BY NOTING THAT A LABOR ARBITRATOR
  IS LIMITED TO THE LABOR CONTRACT AND DOES NOT
  ENFORCE THE LAW
• ALSO THERE IS A CONCERN IN LABOR ARBITRATION THAT
  THE RIGHTS OF THE INDIVIDUAL WILL BE SUBORDINATED
  TO THE RIGHTS OF THE LARGER BARGAINING UNIT

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RECONCILING GILMER WITH GARNER-DENVER

• WHAT IS BEING WAIVED
• WHO IS WAIVING IT
• THE SUPREME COURT IN WRIGHT ADDRESSED THE ISSUE
  OF WAIVER AND SAID THAT FOR A WAIVER OF STATUTORY
  RIGHTS TO BE EFFECTIVE, IT MUST BE CLEAR AND
  UNMISTAKABLE AND THAT THE WAIVER MUST BE
  PARTICULARLY CLEAR

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Circuit City Stores, Inc. v. Adams, 279 F.3d 889
(2002)
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THE 9TH CIRCUIT DECISION

• ON REMAND FROM A SHARPLY DIVIDED SUPREME COURT
• EARLIER DECISION OF THE 9TH CIRCUIT WAS THAT THE
  FAA DID NOT APPLY TO THIS SITUATION, THE SUPREME
  COURT DISAGREED

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FACTS AND SETTING

• ADAMS SIGNED AN AGREEMENT THAT ALL CLAIMS WOULD
  BE ARBITRATED
• SEVERE LIMITATIONS ON DAMAGES WERE IMPOSED
• THE COST WERE SHARED UNLESS THE EMPLOYEE WINS
• UNDERLYING CLAIM WAS SEXUAL HARASSMENT

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THE WAIVER CLAUSE AND CALIFORNIA LAW

• THIS IS A CONTRACT OF ADHESION
• STANDARD FORM
• DRAFTED BY A PARTY WITH SUPERIOR BARGAINING POWER
• PRESENTED ON A TAKE IT OR LEAVE IT BASIS

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SUBSTANTIVELY UNCONSCIONABLE

• SINCE IT WAS ONE SIDED-IT DEALT WITH ONLY THE
  EMPLOYEES CLAIMS
• SINCE IT EXCLUDED DAMAGES THAT WOULD OTHERWISE BE
  AVAILABLE

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BUT WHAT ABOUT GILMER?

• GILMER SAYS IN ARBITRATION YOU MUST BE ABLE TO
  PURSUE STATUTORY CLAIMS
• THE COLE REQUIREMENTS WERE NOT MET REGARDING
• UNREASONABLE COSTS
• DOES NOT PROVIDE THE TYPES OF RELIEF AVAILABLE IN
  COURT

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EEOC V. WAFFLE HOUSE

• 534 US 279 (2002)
• JUSTICE STEVENS

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FACTS AND SETTING

• BAKER WORKED THE GRILL
• HE HAD A SEIZURE
• HE WAS FIRED
• HE FILED WITH THE EEOC WHO PURSUED AND
  ENFORCEMENT ACTION
• COMPANY FILED TO COMPEL ARBITRATION

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THE CONTRACT TO ARBITRATE

• ALL EMPLOYEES, AS A CONDITION OF EMPLOYMENT WERE
  REQUIRED TO SIGN

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THE ROLE OF THE EEOC

• IT IS THE ENFORCEMENT AGENCY OF THE FEDERAL
  GOVERNMENT
• IT CONTROLS THE PROCESS
• EMPLOYEE MAY INTERVENE ONLY
• IT CAN SEEK A WIDE VARIETY OF DAMAGES
• THE EEOC WAS NOT A PARTY TO THE AGREEMENT

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HOLDING

• THE COURT ENDORSES THE FAA AND ARBITRATION IN
  GENERAL
• BUT THE COURT NOTES THAT THE FAA ENFORCES
  CONTRACTS AND THE EEOC WAS NOT A PARTY TO THE
  CONTRACT

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HOOTERS OF AMERICA V. PHILLIPS

• THE AGREEMENT TO ARBITRATE IS INVALID IN LIGHT OF
  PROCEDURAL PROBLEMS
• THE PROCESS SEEMS DESIGNED TO HELP THE COMPANY
  PREPARE A DEFENSE
• ENSURE A BIASED DECISION MAKER (THEY CONTROL THE
  LIST)
• THE COMPANY CONTROLS WHICH ISSUES GO FORWARD
• THE COMPANY ONLY CAN TRANSCRIBE
• THE COMPANY ONLY CAN VACATE
• THE COMPANY CAN CHANGE THE RULES AT ANY TIME

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GETTING PRACTICAL

• EVIDENCE/OBJECTIONS

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THE MECHANICS OF MAKING OBJECTIONS

• SIT DOWN!
• DONT MAKE A SPEAKING OBJECTION
• STATE THE BASIS FOR YOUR OBJECTION FIRST
• STATE YOUR ARGUMENT REGARDING THE OBJECTION
  SECOND
• ADDRESS THE OBJECTION TO THE ARBITRATOR AND NOT
  YOUR OPPONENT

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HEARSAY EXCEPTIONS

• PARTY ADMISSIONS
• PRESENT SENSE IMPRESSION
• EXCITED UTTERANCE
• STATE OF MIND
• STATEMENT MADE FOR MEDICAL TREATMENT
• DYING DECLARATION

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HEARSAY

• OBJECTION IS RARELY SUSTAINED
• GENERALLY IT WILL BE PERMITTED AND WILL BE GIVEN
  APPROPRIATE WEIGHT
• WHEN THE OBJECTION IS SUSTAINED IT WILL BE
  BECAUSE
• THE INFORMATION OFFERED IS REALLY NOT RELEVANT TO
  BEGIN WITH
• THE HEARSAY IS FROM A WITNESS WOULD BE AVAILABLE
• BECAUSE WHAT IS SOUGHT TO BE PROVED THROUGH THE
  HEARSAY IS SO CRITICAL TO THE CASE THAT THE
  ARBITRATOR FINDS THE TESTIMONY TOO UNRELIABLE

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STIPULATIONS

• ARE PERMITTED AND OFTEN SHORTEN THE HEARING BY
  AVOIDING WITNESSES TESTIMONY TO INFORMATION WHICH
  IS NOT IN DISPUTE
• BEWARE OF STIPULATIONS THAT CAN DISRUPT THE FLOW
  OF YOUR CASE

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JUDICIAL NOTICE

• SAME RULES APPLY AS THEY DO IN COURT PROCEEDINGS

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INTRODUCTION OF EXHIBITS AND TESTIMONY AND
APPROPRIATE FOUNDATION
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FOUNDATION

• PROVIDES THE ARBITRATOR WITH INFORMATION THAT THE
  EVIDENCE ABOUT TO BE RECEIVED IS
• RELEVANT
• ADMISSIBLE
• RELIABLE

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IF HARRY IS GOING TO TESTIFY TO SEEING THE CAR IN
THE PARKING LOT

• THAT HARRY CAN SEE
• YOU MUST ESTABLISH THAT HARRY HAD THE OPPORTUNITY
  TO SEE THE CAR IN THE PARKING LOT

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ANOTHER EXAMPLE FOUNDATION FOR EVIDENCE
REGARDING CONVERSATIONS

• DATE
• TIME
• PLACE
• WHO ELSE WAS PRESENT

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FOUNDATION FOR DOCUMENTS

• AUTHENTICATION THROUGH WITNESSES
• TESTIMONY AS TO RECEIPT OF DOCUMENTMAIL BOX
  RULES
• ORIGINAL DOCUMENTS-NOT USUALLY A PROBLEM IN
  ARBITRATION

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