Case Summaries

Commercial Law

[02/01] In re American Express Merchants' Litigation
In a class action asserting Sherman Act claims, brought against a charge card issuer whose card acceptance agreement purported to preclude a merchant from bringing a class action lawsuit, the district court's grant of the defendant's motion to compel arbitration and dismissal of the case is reversed, where the cost of plaintiffs' individually arbitrating their dispute with the defendant would be prohibitive, effectively depriving them of the statutory protections of the antitrust laws, and thus the class action waiver in the arbitration provision was unenforceable.

[01/27] C9 Ventures v. SVC-West, L.P.
In a personal injury suit in which a lessor of helium-filled tanks used to inflate festive balloons cross-complained against the lessee to enforce an indemnification provision on the back of an unsigned invoice, the trial court's judgment in favor of the lessor and award of attorney fees to it is reversed, where: 1) the lessee did not manifest assent to the terms on the back of the unsigned invoice by course of dealing or course of performance, or under basic contract law; 2) the lessee did not sign the invoice or otherwise expressly agree to its terms; 3) an unsigned invoice itself is not a contract, and repeated delivery of a particular form does not make the form part of the parties' agreement; 4) payment of the invoice merely constituted the lessee's performance of the obligation under the oral contract to pay for the rental of the helium-filled tanks; and 5) assuming the transaction was a sale of goods covered by division 2 of the California Commercial Code, the indemnification provision was not an additional term of the contract under section 2207 of the Commercial Code.

[01/24] Long v. Tommy Hilfiger U.S.A. Inc.
In a putative class action against a men's clothing retailer alleging that its printing of “EXPIRY: 04/##” on a credit card receipt willfully violated the Fair and Accurate Credit Transactions Act (FACTA)'s prohibition against printing the expiration date of the a credit card upon any receipt provided to the cardholder at the point of the sale, the district court's grant of the defendant's motion to dismiss is affirmed, where: 1) FACTA prohibits a merchant from printing expiration date information on a receipt provided to the consumer, even if the year is redacted; but 2) the defendant's interpretation of FACTA, although erroneous, was at least objectively reasonable, and thus there was no "willful" violation that could support a claim.

[01/24] Mabey Bridge & Shore, Inc. v. Schoch
In a suit by a corporation engaged in the business of supplying temporary steel bridges for construction projects, seeking a declaration that the Pennsylvania Steel Products Procurement Act, as interpreted and enforced by the Pennsylvania Department of Transportation (PennDOT), is unconstitutional, and requesting a preliminary and permanent injunction enjoining PennDOT from prohibiting the use of the company's temporary bridges on its projects, the district court's grant of summary judgment against the company on all its claims is affirmed, where: 1) the state Steel Act was not preempted by the federal Buy America Act and related federal regulations; 2) the Steel Act is not unconstitutional under the dormant Commerce Clause; 3) PennDOT's actions did not violate the Contract Clause; and 4) PennDOT's application of the Steel Act did not violate the Equal Protection Clause.

[01/20] Khan v. Dell Inc.
On a motion to compel arbitration brought by a defendant computer manufacturer in a case alleging design defects brought as a putative consumer class action by a purchaser, the district court's judgment denying the motion is vacated and the case remanded, where: 1) the arbitration agreement in the purchase contract did not indicate the parties' unambiguous intent not to arbitrate their disputes if the named arbitrator was unavailable; and 2) Section 5 of the Federal Arbitration Act requires a court to address such unavailability by appointing a substitute arbitrator.

[01/17] Antilles Cement Corp. v. Fortuno
In a suit by an importer of foreign cement seeking a declaratory judgment that two statutes of Puerto Rico violate the dormant foreign commerce clause, the district court's judgment invalidating the statutes is affirmed in part and reversed in part, where: 1) the federal Buy American Act does not preempt the statutes; 2) Puerto Rico, by its statute requiring that local construction projects financed with funds from the federal government or the Commonwealth of Puerto Rico use only construction materials manufactured in Puerto Rico, is acting as a market participant not subject to the Commerce Clause; and 3) certain provisions of Puerto Rico's statute imposing labeling requirements on cement sold in Puerto Rico discriminate against sellers of foreign cement in violation of the dormant foreign commerce clause.

[01/05] American Express Travel Related Services, Inc. v. Sidamon-Eristoff
In an appeal from a judgment of the district court denying appellant's motion for a preliminary injunction, judgment is affirmed where appellant failed to show a likelihood of success on the merits of its constitutional challenge to N.J. Laws Chapter 25, which amended New Jersey’s unclaimed property statute to reduce the abandonment period for travelers checks.

[12/30] Orthopedic Systems, Inc. v. Schlein
In cross-appeals from the judgment of the district court in action for tort and breach of contract and arising from the sale of a medical device called the "Schlein Shoulder Positioner," judgment is affirmed as modified where the trial court incorrectly excluded awarded-profits from the final judgment but properly denied plaintiff's motion for judgment notwithstanding the verdict.

[12/20] Arrigotti Fine Jewelry v. DE Beers SA
In an appeal from the district court‘s certification of two nationwide settlement classes comprising purchasers of diamonds from De Beers S.A. and related entities, judgment is affirmed because when determining the propriety of a Rule 23 certification, a district court does not have ensure that each class member possesses a viable claim or some colorable legal claim.

[12/07] Red Lion Hotels Franchising, Inc. v. MAK, LLC
In an appeal from an order of the district court granting plaintiff-cross-defendant's motion for summary judgment in an action for breach of a franchise agreement, judgment is reversed in part where Washington's Franchise Investment Protection Act (FIPA) applies extraterritorially, and therefore, an out-of-state franchisee may assert an FIPA's bill of rights claim against an in-state franchisor.

[12/05] Lopez v. Nissan NA, Inc.
In an appeal from an order of the trial court dismissing plaintiffs' consumer action on summary judgment, order is affirmed where: 1) passenger vehicle odometers are "correct" if they register actual mileage within the four percent tolerance and the designer or manufacturer does not deliberately miscalibrate them to underregister or overregister mileage; and 2) Business and Professions Code section 12500(c) is a "safe harbor" provision under which odometers are, as a matter of law, "correct" if they meet the relevant tolerance standard and were not deliberately miscalibrated.

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Dispute Resolution & Arbitration

[02/03] Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire and Marine Insurance Co.
The district court's grant of a petition to vacate an arbitral award is reversed, and on remand the district court is instructed to grant a cross-petition to confirm the award, where there was insufficient evidence before the district court on which to base a finding of "evident partiality" within the meaning of the Federal Arbitration Act despite the failure of two arbitrators to disclose their concurrent service as arbitrators in another, arguably similar, arbitration.

[02/03] Biller v. Toyota Motor Corp.
In a dispute over the violation of an employment severance agreement, the district court's confirmation of an arbitration award is affirmed, where: 1) the severance agreement called for arbitration under the Federal Arbitration Act; 2) the district court did not err by not conducting a merits review of the award; and 3) the arbitrator did not manifestly disregard the law governing the severance agreement. Denial of the appellant's motion for contempt is also affirmed, where under the plain terms of a permanent injunction issued by the court, the employer was entitled to delete documents from the appellant's computer.

[02/03] Sauer v. Dep't of Education
In a suit by a California state agency seeking review of an arbitration award that made it liable to a blind vendor for failing to sue the federal General Services Administration (GSA) to vindicate the rights of the vendor to conduct business on federal property, the district court's judgment affirming the award is reversed, where: 1) the arbitration panel committed a legal error when it interpreted the Randolph-Sheppard Vending Stand Act as requiring the state agency to bring an action against GSA, and that the agency's failure to do so made it liable for compensatory damages; and 2) because the arbitration panel's ruling was not in accordance with law, it had to be set aside under the Administrative Procedure Act.

[02/01] In re American Express Merchants' Litigation
In a class action asserting Sherman Act claims, brought against a charge card issuer whose card acceptance agreement purported to preclude a merchant from bringing a class action lawsuit, the district court's grant of the defendant's motion to compel arbitration and dismissal of the case is reversed, where the cost of plaintiffs' individually arbitrating their dispute with the defendant would be prohibitive, effectively depriving them of the statutory protections of the antitrust laws, and thus the class action waiver in the arbitration provision was unenforceable.

[01/30] Matter of Thorpe Insulation Co.
In Chapter 11 bankruptcy proceedings, the district court's affirmance of the bankruptcy court's orders denying a creditor's motion to compel arbitration and disallowing its claim is affirmed, where: 1) the resolution of the creditor's claim was a core matter in the bankruptcy; 2) the bankruptcy court did not abuse its discretion in denying the creditor's motion to compel arbitration; 3) the bankruptcy court did not abuse its discretion by declining to give the creditor further opportunity for discovery; 4) the creditor's claim was properly disallowed because because the debtor's covenants in a settlement agreement were purported prepetition waivers of the protections of the Bankruptcy Code, which need not be permitted.

[01/20] Khan v. Dell Inc.
On a motion to compel arbitration brought by a defendant computer manufacturer in a case alleging design defects brought as a putative consumer class action by a purchaser, the district court's judgment denying the motion is vacated and the case remanded, where: 1) the arbitration agreement in the purchase contract did not indicate the parties' unambiguous intent not to arbitrate their disputes if the named arbitrator was unavailable; and 2) Section 5 of the Federal Arbitration Act requires a court to address such unavailability by appointing a substitute arbitrator.

[01/11] Peabody Holding Company, LLC v. United Mine Workers of America
In an appeal from a judgment of the district court upholding an arbitrator's determination of arbitrability in a dispute concerning a limited job-preference agreement, judgment is affirmed where the court, not the arbitrator, had jurisdiction to decide whether the dispute is arbitrable because the agreement lacks the requisite clear and unmistakable language evincing an intent to arbitrate arbitrability, and where the appellants failed to rebut the ordinary presumption in favor of arbitrability.

[01/10] CompuCredit Corp. v. Greenwood
In an appeal from the judgment of the appeals court upholding the trial court's denial of petitioner's motion to compel arbitration of respondents' Credit Repair Organizations Act (CROA) action under an arbitration provision, judgment is reversed where, because the CROA is silent on whether such claims can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) requires that the arbitration agreement to be enforced.

[01/03] Wisdom v. AccentCare, Inc.
In an appeal from a judgment of the trial court denying defendants' motion to compel arbitration of plaintiff's employment claims, judgment is affirmed because a provision that requires an prospective employee's assent that, if hired, all disputes that cannot be resolved informally will be submitted to binding arbitration is both procedurally and substantively unenforceable as unconscionable where the language of the provision did not create mutual obligations.

[12/28] SEIU Local 1021 v. San Joaquin County
In an appeal from a judgment of the trial court denying plaintiff's motion to compel arbitration in an action for wrongful termination, judgment is reversed where: 1) the parties agreed to arbitrate; and 2) real-party's application for retirement benefits while the parties were selecting an arbitrator did not constitute a waiver of the right to arbitrate.

[12/28] Portico Management Group, LLC v. Harrison
In an appeal from a judgment of the trial court denying plaintiff's motion to enforce an arbitration award against a trust and awarding successor trustees post-arbitration attorney fees as prevailing parties, judgment is affirmed where the trial court correctly held that it was improper to enter judgment against the trust, but reversed where it erred in denying plaintiff's motion to join a trustee as a defendant on an alter ego theory.

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Property Law & Real Estate

[01/27] Matter of Meruelo Maddux Properties, Inc.
In Chapter 11 bankruptcy proceedings involving the question whether the debtor was subject to the single asset real estate provisions of the Bankruptcy Code, the district court's holding that the single asset real estate provisions applied is affirmed, where: 1) the debtor, which existed solely to operate a 92-unit apartment complex, could be characterized as a single asset real estate debtor under the Bankruptcy Code; 2) the plain language of the Code gives no basis for a "whole business enterprise" exception to single asset real estate debtor status that would allow the court to consider parent corporation and sister subsidiaries; and 3) the district court did not err in its approach to granting relief from the automatic stay by leaving questions about whether the debtor timely took timely corrective action to the bankruptcy court in the first instance.

[01/25] Otay Mesa Property, L.P. v. US
On appeal from a decision of the United States Court of Federal Claims awarding plaintiffs $3,043,051, plus interest, for the temporary taking of a blanket easement over five parcels of land and limiting the government's liability to the taking of an easement over those five parcels and limiting the period of the taking to April of 1999 to October of 2008, the judgment is affirmed in part and vacated in part, where: 1) the Claims Court erred when it concluded that the government's taking of the easement was a temporary rather than a permanent physical taking, resulting in an erroneous calculation of the plaintiffs' damages; and 2) the Claims Court did not err in limiting the government's liability.

[01/25] General Development Co., L.P. v. City of Santa Maria
On appeal from a judgment of dismissal entered in favor of the City of Santa Maria after the trial court ruled that a developer's petition for writ of mandate was time barred by Government Code section 65009 for failure to timely challenge the denial of a zone change, judgment is affirmed, where the trial court did not err in ruling that City's denial of the developer's rezoning application was a "decision of a legislative body to adopt or amend a zoning ordinance" within the meaning of section 65009.

[01/20] Center for Sierra Nevada Conservation v. County of El Dorado
In a case arising from the County of El Dorado's adoption of an oak woodland management plan and mitigation fee program without an environmental impact report (EIR), the district court's judgment in favor of the county is reversed, where: 1) the county could not rely on an earlier program EIR for its conclusion that the adoption of the plan and fee program would have no greater adverse environmental effect than that already anticipated in the program EIR, and its adoption of a negative declaration; and 2) the California Environmental Quality Act (CEQA) required a tiered EIR to be conducted prior to the county's adoption of the plan and fee program.

[01/19] Hearts Bluff Game Ranch, Inc. v. US
In a suit for just compensation under the Fifth Amendment for an alleged taking based on the Army Corps of Engineers' denial of a landowner's proposal to operate a "mitigation bank" on its property, the Court of Federal Claims' dismissal for failure to state a claim is affirmed, where the Claims Court did not err in holding that the landowner did not possess a legally cognizable Fifth Amendment property interest in a mitigation bank instrument.

[01/19] Western States Petroleum Ass'n v. State Board of Equalization
In an action for declaratory relief seeking to invalidate a regulation of the State Board of Equalization (SBE) that adopted new valuation formulas for petroleum refineries, the trial court's judgment in favor of the plaintiffs on cross-motions for summary judgment is affirmed, where: 1) the trial court did not err in declaring the regulation to be inconsistent with Rev. and Tax. Code section 51(d); and 2) the trial court did not err in ruling that SBE's economic impact statement did not comply with requirements of the Administrative Procedures Act.

[01/12] Bowers v. Whitman
In an appeal from an order of dismissal by the district court, order is affirmed where Oregon's modification of the remedies available under Measure 37 is not a constitutional taking because: 1) any potential property interest that plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested; and 2) Measure 49 does not contravene substantive due process, as it does not implicate fundamental rights or fail rational basis scrutiny.

[01/06] Vegas Diamond Properties, LLC v. FDIC
In an appeal from a judgment of the district court dissolving a Temporary Restraining Order on the ground that the anti-injunction provision of the Financial Institutions Reform, Recovery and Enforcement Act precluded it from enjoining the FDIC from conducting a trustee's sale of certain real properties, appeal is dismissed as moot where the subject properties were sold prior to appeal.

[01/06] DiVittorio v. HSBC Bank USA, NA
In an appeal from a judgment of the district court upholding the bankruptcy court's dismissal of plaintiff's truth-in-lending complaint for rescission, Mass. Gen. Laws ch. 140D, section 10, judgment is affirmed where the complaint failed to state a claim and, alternatively, because plaintiff knowingly and voluntarily waived any rights to rescission.

[01/05] American Express Travel Related Services, Inc. v. Sidamon-Eristoff
In an appeal from a judgment of the district court denying appellant's motion for a preliminary injunction, judgment is affirmed where appellant failed to show a likelihood of success on the merits of its constitutional challenge to N.J. Laws Chapter 25, which amended New Jersey’s unclaimed property statute to reduce the abandonment period for travelers checks.

[12/29] Balderas v. Countrywide Bank, NA
In an appeal from a Rule 12(b)(6) dismissal of the plaintiffs' Truth In Lending Act complaint, judgment is reversed where the complaint contained allegations that, if proven, presents a winning case, and thus the district court erred in dismissing the action however remote plaintiffs' ultimate success may be.

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Landlord Tenant

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