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Case No. ADJ7271031
Regular
Sep 21, 2012

THOMAS DACK vs. CEMEX, COMMERCE & INDUSTRY INSURANCE COMPANY administered by CHARTIS CLAIMS INC.

This case involves the defendant's Petition for Removal after the WCJ denied their request to compel the applicant's attendance at a QME examination. The applicant's attorney's office had previously stated the applicant would not attend QME evaluations until litigation was resolved and attempted to strike a QME. The Appeals Board is giving notice of its intention to grant the defendant's petition and compel the applicant's attendance, unless the applicant shows good cause within ten days. The Board finds the defendant has presented a prima facie case for compelling the examination, noting a lack of formal objection from the applicant.

Petition to CompelPanel QMELabor Code section 4062.2WCJPetition for RemovalApplicant objectionGood causeWorkers' Compensation Appeals BoardQualified Medical EvaluatorIndustrial injury
References
0
Case No. 95 CIV. 0004 (LMM)
Regular Panel Decision

In Re Arbitration Between Standard Tallow Corp. & Kil-Management A/S

The petitioner sought to compel arbitration in New York City concerning damages to goods shipped by the respondent from New York to Barcelona, Spain. The dispute arose from a contract between the parties which contained two conflicting arbitration clauses: one in Part I mandating arbitration in London, and another in Part II requiring arbitration in New York. The court, presided over by District Judge Motley, interpreted the contract, specifically a preamble stating that Part I provisions prevail over Part II in case of conflict, and also considered that the London clause was in the "typewritten" portion of the agreement, which typically holds precedence. Citing federal contract law and similar maritime contract cases, the court concluded that the London arbitration clause controls the location of arbitration. Consequently, the petition to compel arbitration in New York was denied, although no order was issued to compel arbitration in London as the respondent did not file a cross-petition.

ArbitrationContract InterpretationFederal Arbitration ActChoice of ForumMaritime LawConflicting ClausesContractual PrecedenceLondon ArbitrationNew York ArbitrationJudicial Review
References
26
Case No. MISSING
Regular Panel Decision

Priest v. General Electric Co.

The International Union of Electrical Radio and Machine Workers of America-AFL-CIO, Local 320, sought to compel General Electric Company to arbitrate an employee's discharge as a security risk. General Electric moved to dismiss, challenging the court's jurisdiction and the applicability of arbitration acts. The court considered whether the Federal Arbitration Act and the Labor Management Relations Act mandated arbitration for collective bargaining agreements. Ultimately, the court found that the specific collective bargaining agreement did not provide for arbitration of employee discharge grievances, absent claims of union discrimination. Consequently, the court denied the union's application to compel arbitration and granted General Electric's motion to dismiss the proceeding due to the lack of an arbitrable question.

Labor DisputeArbitrationCollective Bargaining AgreementEmployee DischargeJurisdictionFederal Arbitration ActLabor Management Relations ActArbitrabilityGrievance ProcedureContract Interpretation
References
8
Case No. MISSING
Regular Panel Decision

In re Arbitration between Campbell & State of New York

Monica A. Campbell, a state employee, and her union, New York State Correctional Officers and Police Benevolent Association (COPBA), entered into a disciplinary settlement agreement with her employer, the New York State Office of Mental Health (OMH). This agreement established a one-year disciplinary evaluation period (DEP) during which Campbell could be terminated without recourse to arbitration if she committed misconduct. Following two incidents, OMH terminated Campbell's employment. Petitioners (Campbell and COPBA) sought to compel arbitration of the termination, arguing that the agreement did not explicitly exclude arbitration on the question of misconduct. Supreme Court ordered arbitration. Respondents (OMH) appealed, arguing the DEP constituted a probationary period where OMH had the right to make a threshold determination of misconduct without arbitration. The appellate court agreed with OMH, finding that the parties intended to exclude arbitration for the threshold determination of misconduct during the DEP, and that petitioners' sole remedy was judicial review under CPLR article 78. Therefore, the Supreme Court's order compelling arbitration was reversed, the petitioners' application denied, and the respondents' cross-application to stay arbitration was granted. The matter was remitted for consideration of petitioners' alternative CPLR article 78 request.

ArbitrationDisciplinary ActionEmployment TerminationCollective Bargaining AgreementPublic EmployeesProbationary PeriodMisconductJudicial ReviewCPLR Article 78Appellate Review
References
16
Case No. MISSING
Regular Panel Decision

Erie Basin Terminal Warehouse Co. v. Marine Terminal & Warehousemen's Local 976-4

Plaintiff instituted an action against the International Longshoremen’s Association, AFL-CIO, under the Taft-Hartley Act for alleged breach of their collective bargaining agreement. The defendant moved to compel arbitration of the dispute, citing an arbitration clause in the agreement. Plaintiff argued that the clause was not applicable, was too narrow, and that being out of business negated the arbitration requirement. The court, referencing established precedent, determined that the agreement clearly intended for such disputes to be arbitrated. The court found that the "disputes or controversies" language encompassed employer claims and and that the plaintiff's business status did not alter the obligation to arbitrate. Consequently, the court granted the defendant's motion, compelling the plaintiff to submit its claim to arbitration.

Taft-Hartley ActCollective Bargaining AgreementArbitration ClauseBreach of ContractMotion to Compel ArbitrationLabor LawFederal CourtStatutory InterpretationDispute ResolutionContractual Obligation
References
3
Case No. MISSING
Regular Panel Decision

Sutherland v. Ernst & Young LLP

Plaintiff Stephanie Sutherland sued her former employer, Ernst & Young LLP (E & Y), alleging violations of the FLSA and New York labor laws for unpaid overtime. E & Y moved to dismiss or stay proceedings and compel individual arbitration, citing an arbitration agreement with a class waiver. The court denied E & Y's motion, finding the class waiver provision unenforceable. The court reasoned that enforcing the waiver would make it prohibitively expensive for Sutherland to pursue her claims individually, effectively granting E & Y de facto immunity from liability. Despite the unenforceability of the class waiver, the court noted it could not compel class arbitration due to the agreement's silence on the matter, following the precedent of Stolt-Nielsen.

FLSAArbitration AgreementClass Action WaiverOvertime WagesEmployment LawStatutory RightsEnforceabilityCollective ActionEconomic FeasibilityJudicial Forum
References
26
Case No. MISSING
Regular Panel Decision
Mar 06, 2002

Dassero v. Edwards

This case concerns a federal securities fraud action brought by eight individual plaintiffs against Charles E. Edwards, the former President and CEO of ETS Payphones, Inc., alleging a Ponzi scheme involving customer-owned coin-operated telephones (COCOTs). Edwards, the sole remaining defendant, moved to compel arbitration based on a clause in the underlying Telephone Equipment Lease Agreement. The court determined that Edwards, despite being a non-signatory in his personal capacity, could potentially enforce the arbitration clause under agency and alter-ego theories and that he had not waived his right to arbitration. However, the court denied the motion to compel arbitration at this stage, ruling that a jury trial is necessary to determine the factual issue of whether the plaintiffs signed or are otherwise bound by the agreements containing the arbitration provisions.

Securities FraudArbitration AgreementFederal Arbitration ActPonzi SchemeInvestment ContractsNon-Signatory EnforcementAgency TheoryAlter Ego DoctrineEquitable EstoppelWaiver of Arbitration
References
50
Case No. MISSING
Regular Panel Decision

Maye v. Smith Barney Inc.

Plaintiffs Kelsey Maye and Jermarlon Harris sued their employer, Smith Barney Inc., and supervisors Kenneth Shaw and Robert M. Skelton, alleging sexual harassment and racial discrimination under Title VII and New York Executive Law. Defendants moved to dismiss or compel arbitration, citing "Principles of Employment" signed by plaintiffs that mandated arbitration for employment disputes. The court, presided over by Judge Motley, evaluated the enforceability and scope of these arbitration agreements under the Federal Arbitration Act. The court determined that the agreements were clear and enforceable under New York contract law and federal policy favoring arbitration, rejecting plaintiffs' argument of not knowingly accepting arbitration. Consequently, the defendants' motion to compel arbitration was granted, and the court action was stayed pending arbitration.

Employment ArbitrationSexual Harassment ClaimsRacial Discrimination ClaimsTitle VII LitigationFederal Arbitration ActDispute Resolution ProceduresEmployee Contract DisputesMotion to Compel ArbitrationSecurities Industry EmploymentNew York Executive Law
References
29
Case No. MISSING
Regular Panel Decision

Marcus v. Masucci

Plaintiff Steven Marcus filed a complaint against Samuel Masucci and Bear Stearns & Co., Inc., alleging misappropriation of trade secrets, unfair competition, and unjust enrichment related to an investment product. The defendants moved to compel arbitration and dismiss or stay the action. The court found that Marcus, as a registered employee of Chase Securities (an NASD member), was bound by a Form U-4 agreement to arbitrate disputes under NASD rules. Masucci, employed by Bear Stearns (also an NASD member), was an 'associated person.' The court determined that an enforceable arbitration agreement existed and that its broad scope encompassed Marcus's claims, including those predating his employment with Chase Securities. Consequently, the motion to compel arbitration was granted, and the action was dismissed with leave to reopen if necessary after arbitration.

ArbitrationFederal Arbitration ActNASD By-lawsForm U-4Securities IndustryEmployment DisputeTrade SecretsUnfair CompetitionUnjust EnrichmentRetroactive Application
References
24
Case No. MISSING
Regular Panel Decision

Singer v. Salomon Bros.

James A. Singer, a former managing director at Salomon Brothers, Inc., alleged discriminatory dismissal based on his disability, breach of contract, and quantum meruit after his employment was terminated following a cancer diagnosis. Salomon Brothers moved to stay Singer's action and compel arbitration, citing an arbitration clause in Singer's U-4 form. Singer contended that his state discrimination claims were not arbitrable and that the U-4 form constituted an employment contract, thus falling under the Federal Arbitration Act's (FAA) employment contract exemption. The court, however, following US Supreme Court precedent, ruled that the U-4 form was a contract with the securities exchanges, not the employer, and therefore not exempt from the FAA. Concluding that arbitration is a favored means of dispute resolution, even for discrimination claims, and that Singer failed to demonstrate that arbitration would be an inadequate forum, the court granted Salomon Brothers' motion to stay the action and compel arbitration.

Arbitration AgreementEmployment DiscriminationDisability DiscriminationFederal Arbitration ActU-4 FormSecurities IndustryNew York Human Rights LawMotion to Compel ArbitrationInterstate CommerceWrongful Termination
References
9
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