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The Ninth Circuit Strikes Again: Unconscionability and Arbitration Agreements on the West Coast
In a recent decision, the Ninth Circuit revisited the thorny issues involving the doctrine of unconscionability and its application to arbitration agreements. In Davis v. O'Melveny & Myers, 485 F.3d 1066 (9th. Cir. 2007), the court relied on a number of relatively recent, and by now well-known, cases in finding that a mandatory arbitration provision in O'Melveny's employee dispute resolution materials was unconscionable and, therefore, unenforceable.
The dispute resolution materials were distributed by O'Melveny to its employees by interoffice mail and posted on the office intranet site, and by their terms became effective three months later. In considering whether the agreement was unconscionable, the court focused on the various exceptions ('carve-outs') to the arbitration requirement, as well as the provision requiring notice and a demand for mediation within one year from when the basis of the claim was known, and a confidentiality clause.
Based on the Ninth Circuit's recent decision in Nagrampa v. MailCoups, Inc., 469 F.3d 1257 (9th Cir. 2006), the court observed as a threshold matter that it was a question for the court, as opposed to the arbitrator, to decide whether the arbitration agreement was unconscionable. Turning to the issues at hand, the court noted that under California law, a clause (or arbitration agreement) is unenforceable if: 1) it is both procedurally and substantively unconscionable; and 2) both procedural and substantive unconscionability are found, but not necessarily to the same degree. Rather, the courts apply a 'sliding scale' pursuant to which 'the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable and vice versa.'
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.