Dash for Arbitration

DoorDash delivery workers filed thousands of individual claims at once as initial fees approach $12 million for the company. Under District Judge William Alsup’s order this week in Abernathy v. DoorDash pending in the Northern District of California, DoorDash must arbitrate over 5,000 individual disputes with various workers who claim that they were misclassified as independent contractors, when they should be treated as employees. It also must pay a $1,900 fee for each of these individual arbitration proceedings. As with other gig economy platforms, DoorDash includes an arbitration agreement in its contracts with couriers, who deliver food orders. But after facing a flood of claims, DoorDash balked at the costs of going into arbitration administered by the American Arbitration Association (AAA) where couriers themselves paid more than $1.2 million in filing fees. After Uber imposed arbitration and a class action ban, more than 60,000 of those drivers sought to arbitrate claims against the company. Faced with legal costs of at least $600 million, Uber settled the a majority of these claims last spring. Could the same happen in this case? Another California federal judge similarly compelled arbitration in a case with thousands of claims against Postmates, asking the attorneys to explain how the company’s refusal to pay arbitration fees didn’t amount to contempt. A ruling is pending on that issue. DoorDash had asked to suspend the court proceedings until the approval of a settlement could be reached in a separate class-action case, given the potential for overlap. The company reportedly stands ready and willing to defend legitimate arbitration demands, but maintains it should only be responsible for arbitrating legitimate claims. See more here-- https://bit.ly/39uUehT and https://bit.ly/38qRDWa and https://bit.ly/2OSRQcW

ADR Section Member Survey Due 1/23

The Alternative Dispute Resolution (ADR) Section of The Florida Bar wants to maximize its services and resources for members. As such, I was tasked along with our Executive Council to create a survey in order to take the pulse of our almost one thousand member section a decade into its existence. For those who already belong to the section, you should have received an email from our chair containing the individualized invitation link to take the survey. Please complete this information by January 23, 2020. If you are not a member of the ADR Section, but belong to the Florida Bar, please consider joining now or upon your bar dues renewal this summer. The ADR Section provides a forum for lawyers interested in alternative dispute resolution and for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. The ADR Section keeps its Florida Bar membership informed and updated regarding legislation, rules and policies in connection with mediation, arbitration and other ADR processes. We also provide quality continuing legal education programs (CLE/CME). The ADR Section also acts as an advocate for attorney mediators in dealing with the Dispute Resolution Center (DRC) and Florida Supreme Court rule changes proposed by the ADR Rules & Policy committee of the court. See more here-- https://bit.ly/36SNAkK and https://bit.ly/2tkQ1Ow

Judge Blocks CA Arb Ban

Today, there's a hearing on a Temporary Restraining Order (TRO) against the State of California where a federal district judge is blocking implementation of the state’s new ban on arbitration of cases involving sexual harassment. The court will hear a request by the California Chamber of Commerce and other business groups for a preliminary injunction. This is a big test that will have national impact. The ban was signed into law in October 2019. It prohibits California employers from requiring employees to waive any right to or opt out of any legal forum or procedure established by the California Fair Employment or Labor Code. The new law applies to contracts for employment entered into, modified or extended on or after January 1, 2020-- the effective date of the new law. If an employer violates the act by forcing arbitration, they would commit a misdemeanor. The National Retail Federation filed suit in federal court seeking to prevent the law from going into effect by arguing the Federal Arbitration Act (FAA) and recent U.S. Supreme Court cases created a federal policy of using arbitration as a legitimate alternative to court litigation. Further, the FAA preempts state law to the contrary. A final ruling regarding primacy of the FAA over state law will serve as a bellwether on employer use of arbitration and may thwart other states from passing similar laws. See more here-- https://bit.ly/2R1oWrz and https://bit.ly/2RafHWa UPDATE: Following oral argument during which recent SCOTUS cases involving the FAA such as Epic Systems and Kindred Nursing were cited, the court requested supplemental briefing regarding the state's suggestion that the court lacks jurisdiction. The TRO will remain in effect until January 31, 2020.

Florida Loses Water Wars

After rejecting a now deceased Special Master's ruling in favor of Florida and remanding to a new Special Master to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia, the U.S. Supreme Court this week received a recommendation not to grant Florida’s request for a decree equitably apportioning the waters of the Apalachicola-Chattahoochee-Flint River Basin. The Special Master found the evidence did not show harm to Florida caused by Georgia and that Georgia’s water use is reasonable. Additionally, the evidence did not show that the benefits of apportionment would substantially outweigh the potential harms. Florida asked for oral argument that took place last month, where it asserted the first Special Master found that Georgia’s upstream water use was unreasonable and that the Supreme Court already rejected an additional finding that nothing could be done because the U.S. Army Corps of Engineers (which manages the reservoirs in the river system) is not a party to the case. Florida sought a cap on consumption that would alleviate past damage allegedly caused by Georgia. Georgia maintained any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry. Florida wanted to limit Georgia’s water consumption from the basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia claimed Florida failed to prove harm to aquatic species. This blog has followed the Water Wars for years in several other entries and it now appears this will be the ultimate conclusion in this case of original jurisdiction, absent further action and a presumed adoption of findings by SCOTUS. See more in very detailed report here-- https://bit.ly/2PhTcP5

Orlando Mediator Top 10 Blog!

This month, my blog which will reach a decade old next year, received the honor of being named in good company with top dispute resolution blogs around the world. Orlando Mediator is recognized by Feedspot among such distinguished blogs published by big names like Thompson Reuters, Harvard Program on Negotiation and Kluwer. Feedspot's panelists chose this as number seven in the world for what their founder calls the most comprehensive list of Top 20 Dispute Resolution Blogs on the internet! Feedspot is an RSS reader that allows putting all of your online reading in one location. These feeds can, for example, allow a user to keep track of many different websites in a single news aggregator. I am humbled to know this labor of love for my chosen field is appreciated. The full list is available here-- https://tinyurl.com/y43rav46

California's Arbitration Ban

This month, a California bill prohibiting workplace arbitration was signed into law. Effective January 1, 2020, the new law criminalizes the use of mandatory arbitration agreements by making such a practice a misdemeanor offense. It prevents allegations of discrimination, harassment, and retaliation arising under that state’s Fair Employment and Housing Act from being subject to mandatory arbitration. This action sets up a direct conflict with the Federal Arbitration Act (FAA) and clear federal policy favoring arbitration. Challenges to constitutionality of this and other states' laws of this nature are coming. In recent terms, the U.S. Supreme Court reminded states of the predominance of federal policy regarding arbitration, striking down efforts to undermine the use of arbitration. States will likely argue that an arbitration agreement covering such claims is effectively a contract that is void as a matter of public policy. It will be argued such provisions fall within the FAA’s savings language, which preserves traditional state law defenses to arbitration agreements arising out of contract formation. At least one attorney commentator recognizes the problem with this argument-- that the underlying state policy established by the statute appears to directly conflict with the FAA’s underlying purposes, making the policy itself unconstitutional. As such, an unconstitutional policy should not void a contract whose terms are consistent with federal policy regarding dispute resolution. See more here-- https://tinyurl.com/y5yld9x4 and https://tinyurl.com/y37n4pxn

ADR Section Mentoring Academy

Take your mediation practice to the next level with the Alternative Dispute Resolution (ADR) Section of The Florida Bar's inaugural Mentoring Academy later this month. Some of the state’s most experienced mediators, including some with whom I serve on the ADR Section Executive Council, will conduct this advanced-level Continuing Mediator Education (CME) and Continuing Legal Education (CLE) workshop. You will be coached on mediation strategies and receive instructive feedback on techniques. Also, increase your statewide network with a reception following the Friday evening panel discussion. Saturday’s sessions include lunch. This first-ever Mentoring Academy will be held October 25 – 26 at the University of South Florida’s Center for Advanced Medical Learning and Simulation (CAMLS) in downtown Tampa. The Florida Bar course is approved for 10 CLE/CME, 1 Ethics CLE/CME and 9 Professionalism CLE credits. The $425 tuition includes an annual membership in The Florida Bar ADR Section and those that are already section members can register for only $390. The Florida Bar ADR Section developed the Mentoring Academy in part because mediators have ethical obligations to advance the mediation profession. We are providing an opportunity for succeeding generations of mediators to have the benefit of experienced instruction from more seasoned mediators. Meaningful interaction between the mediator participants and workshop instructors is a key element of the academy. Don't miss out! Learn more here-- FlaBarADR.com/mentoring-academy