An Anti-SLAPP motion allows a defendant who is sued for speaking out and exercising their First Amendment rights a speedy and relatively inexpensive defense. In the late 90s, the California legislature made the denial of an Anti-SLAPP motion immediately appealable. Since then, an unexpected trend has emerged where corporate defendants use this right by filing and then appealing meritless Anti-SLAPP motions as a way to pause their litigation and dramatically increase costs. In a recent decision, the California Court of Appeal has once again pled that the law be revisited to foreclose this loophole.

An arbitrator's powers are generally limited by the parties' agreement. But who decides if an issue within the arbitrator's power in the first place? This is called the "Delegation Question" and has been hotly debated with the ever-increasing use of arbitration agreements. In a recent decision, the Ninth Circuit meticulously reviewed the history of the question, inconsistent Supreme Court precedent, and ultimately decided that "in the face of silence or ambiguity" and without "clear and unmistakable evidence" the default is that the Delegation Question is decided by a judge, not by an arbitrator.

California Dramatically Limits Third-Party Discovery In An Arbitration: After avoiding the subject for years, a California Court of Appeals has clearly stated that an Arbitrator's ability to order third party discovery is highly limited under both the Federal Arbitration Act and the California Arbitration Act. While some exceptions still exist, they are narrow and will likely continue to shrink.

California has created a bright line rule that claims under the Private Attorney General Act (PAGA) cannot be forced into arbitration. When faced with an overly broad arbitration provision that required all "representative actions" to be arbitrated and which did not allow the provision to be severed if found invalid, the California Court of Appeal held that an employer may not selectively enforce the arbitration provision and the entire provision was unenforceable. When entering into contracts, best practice is to have a provision be severable if it is found to be illegal.

As lawyers, we have a duty to only file meritorious cases. That duty protects both lawyers and clients alike. Case in point: when JC Lee (Stan Lee's daughter) and her attorneys filed a lawsuit to enforce an agreement that had already been the subject of numerous lawsuits over the last two decades, the Court held that the lawsuit had no merit, was filed for an improper purpose, and fined Ms. Lee $1,000,000, with her attorneys jointly responsible for $250,000.

Many contracts have a choice of law provision, governing which state's law applies in interpreting the contract. Too often, contracting parties ignore these clauses, to their detriment. In Airs Aromatics, LLC v. CBL Data Recovery Technologies Inc., a California Court held that while New York substantive law is to be applied based on the parties' New York choice of law provision, California procedural law still applies to the California court's decision. Confused? So were both parties. To avoid such thorny procedural issues, try to match your choice of law provisions with the state where a lawsuit is likely to be filed—or simply add a choice of venue provision requiring the lawsuit to be filed in a specific state.

In California’s continuing struggle with the Federal government over arbitration, a California Court has once again affirmed that a claim made purely under California’s Private Attorneys General Act (PAGA) cannot be compelled to arbitration, regardless of any underlying agreements between the parties, because “A PAGA claim is made on behalf of the State and the State cannot be compelled to go to arbitration.”

A default is what happens when a litigant fails to timely respond to a lawsuit. In Airs Aromatics, LLC v. CBL Data Recovery Technologies Inc., the California Court of Appeals reaffirmed the reality that once default is granted, the defaulting party has no "rights to participate in the litigation" or "take any further affirmative steps in the litigation." No matter how frivolous, ridiculous, or unfair, a lawsuit seems, failing to respond is almost never a good choice.

A case Orsus Gate filed earlier this year highlights the ways that the federal EB-5 program has been abused by unscrupulous actors. Details of the case, as well as some of the larger systemic problems inherent in the program, can be found in this Mercury News article.

Recently, the California Court of Appeals provided an effective reminder as to why choosing the right counsel is so important. In Hernandez v. FCA US LLC, et al., after the lawsuit settled, the Court set a deadline for Ms. Hernandez (the Plaintiff) to request her attorneys’ fees. Her attorneys blew the deadline and the Court dismissed the case. Her attorneys then made several motions to undue their mistake, including requesting that the case be reinstated based on their own “neglect.” Unfortunately for Ms. Hernandez, both the trial Court and the Court of Appeals refused to excuse the neglect, essentially barring her from recovering any attorneys’ fees. Such neglect is more common than people realize. 

Orsus Gate utilizes both calendaring software as well as our attorneys’ independent review of the docket as QA/QC to ensure that our clients avoid the same fate. 

It goes without saying that you should read a contract before you sign it, and waivers of liability are no exception: as the California Court of Appeals recently held in Kanaovsky et al v. At Your Door Self Stor, et al., “[o]ne may not contract to accept risk, decide to be self-insured, and then retroactively demand to be paid by the other side after there is a loss.”

Put another way: next time you rent a car, storage unit, or other service where insurance is offered, be sure to consider the risk involved in rejecting the offer, as you likely won’t get a second bite at the apple should things not work out.