In recent years,
The Supreme Court's Recent Holding in AT&T Mobility
In AT&T Mobility, 179 L. Ed. 2d at 759 the Supreme Court, in a 5-4 vote, overturned a 9th U.S. Circuit Court of Appeals decision, which had declared a class action waiver in an arbitration provision unenforceable under California law for public policy reasons. The case involved a dispute resolution provision in a consumer cellular telephone contract that the district court had described favorably as a "quick, easy to use" dispute resolution procedure that was likely to "promp[t] full or ... even excess payment to the customer without the need to arbitrate or litigate."
The Supreme Court reversed the 9th Circuit and held that the Discover Bank rule is pre-empted by the Federal Arbitration Act.
Background of the New Jersey Case
NAACP of Camden
After a hearing to assess plaintiffs' claims of unconscionability, the trial court upheld the class action waiver, dismissed the complaint, and referred the case to arbitration.
The Court's Application of AT&T Mobility
The Appellate Division rejected plaintiffs' claim that the arbitration provisions were unconscionable and therefore unenforceable on public policy grounds, but it did so based upon AT&T Mobility, rather than the evidential hearing relied upon by the trial court. As the court reasoned, "in light of the United States Supreme Court's supervening opinion in AT&T Mobility, plaintiffs' unconscionability and public policy arguments must fail for a legal reason, regardless of how one views the testimony adduced at the Muhammad hearing."
The Arbitration Provisions Nonetheless Found Unenforceable
Even before declaring the unconscionability and public policy arguments ineffective under AT&T Mobility, the Foulke court acknowledged that the Supreme Court's decision left the door open to challenge arbitration provisions and class waivers based on contract formation principles. Citing both a footnote in the majority opinion and a broader discussion in Justice Thomas' concurring opinion, the
In its analysis, the Appellate Division held that the RIC, the Addendum, and the SAD all included arbitration provisions that were "plagued with confusing terms and inconsistencies." Among those inconsistencies were the nature of the arbitration procedure (e.g., rules to be utilized, arbitrator or arbitrators to be used, and method of selection), locale of the arbitration, the costs of the arbitration and who is to bear them, the class waiver provisions, and time limitations.
John Cerreta and Jennifer Shukla authored an article, "Navigating Recent Changes to Connecticut Design Law," for the Connecticut Law Tribune.
On May 25, the Federal Bar Council held a CLE, entitled: "Second Circuit Appellate Advocacy Workshop," which was coordinated by Dan Wenner.
Mark Salah Morgan, Maureen C. Pavely and Michael L. Fialkoff authored an article, "Authenticating Social Media Evidence in NJ Courts," which was published by the New Jersey Law Journal.
John Cerreta wrote an article, "Design Defects at the Connecticut Supreme Court: A Doctrine in Flux," for The Connecticut Law Tribune.
Erick Sandler wrote an article, "Court Sets Standard for Application of Attorney-Client Privilege to Mixed-Purpose Communications," for The Connecticut Law Tribune.
Michael Furey was quoted in three separate articles in Politico, the New Jersey Law Journal and Law360 regarding his oral argument before the New Jersey Supreme Court of an appeal of an important discovery order by the firm's hospital clients.
John Cerreta was quoted in an article, "John Cerreta Talks Clerking for Alito, Commercial Litigation Changes" in the Connecticut Law Tribune.
On January 5, Day Pitney hosted a speech by Robert L. Capers, the U.S. Attorney for the Eastern District of New York, to the White Collar Crime Committee of the American Bar Association's Business Law Section (WCCC) at the firm's New York City office.
Erick Sandler was elected to the board of directors of the Connecticut Supreme Court Historical Society at its annual meeting on May 12. The Connecticut Supreme Court Historical Society promotes and preserves the state’s judicial and constitutional tradition through scholarship, memorials, publications and education. Erick is the chair of Day Pitney's Appellate Practice group.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.