WAIVING THE RIGHT TO ARBITRATION BY PARTICIPATING IN LITIGATION

ArbitrationMany business contracts have an arbitration provision that states something similar to: “any dispute arising out of or related to this agreement shall be subject to binding arbitration, not to a lawsuit filed in court.” Some provisions even expressly state that the parties waive their right to file a lawsuit if such a dispute arises. It is therefore reasonable for those parties to assume that they will not see the inside of a courtroom if there is a dispute.

However, the Ohio Court of Appeals for the Second Appellate District recently emphasized that “even if a contract requires arbitration, a contracting party can waive the right to arbitration.” White v. Smith, 2nd Dist. Greene No. 2014-CA-48, 2015 Ohio App. Lexis 1603, 2015 Ohio 1671, ¶¶1-2 (May 1, 2015). The court made its decision while still acknowledging the presumption in favor of resolving disputes through arbitration. Id. at ¶22-23 (quoting from Ohio’s arbitration statute and stating that “arbitration is encouraged as a method to settle disputes, and a presumption favoring arbitration arises when the claim in dispute falls within the scope of an arbitration provision.”) (internal quotation and citation removed). The court held that, “‘[l]ike any other contractual right, the right to arbitrate may be waived,’” although “‘[d]ue to Ohio’s strong policy favoring arbitration, the party asserting a waiver has the burden of proving it.” Id. at ¶24, quoting Murtha v. Ravines of McNaughton Condominium Assn., 10th Dist. Franklin No. 09AP-709, 2010-Ohio-1325, ¶20.

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Posted by Michael Mayer
Business Litigation
June 17, 2015

PIRACY OF THE CENTURY?

privacy2The May 2, 2015 boxing match between Floyd Mayweather and Manny Pacquiao was billed as the “Fight of the Century.”[1] It broke many records, including the record for pay-per-view viewership in the United States with 4.4 million purchases and over $410 million in pay-per-view revenue.[2] The cost to order the fight on television was $89.95, plus an additional $10 for high definition.[3] Given that steep price and the high level of interest in the bout, the “Fight of the Century” may also have broken the record for most pirated live sporting event ever.

Federal law prohibits the unauthorized publication, use, interception, or reception of certain televised events, through the Communications Act of 1934 (47 U.S.C. § 605, et seq.) (“Communications Act”) and the Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553, et seq.) (“Cable Act”). Both statutes allow for a private right of action, i.e., any person harmed by a violation may bring a lawsuit to enforce the statute, not only the government.[4]

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Posted by Michael Mayer
Advertising and Media, Business Litigation
May 28, 2015

SUPER BOWL TICKET FRAUD?

ticket fraudEvery football fan dreams of watching his or her favorite team play in the Super Bowl. Attending that Super Bowl is an even bigger dream. As a Detroit Lions fan, I am not holding out much hope that I will ever have my dream fulfilled. However, this past year, numerous Seattle Seahawks fans thought that their big dream would become a reality. They went online, purchased tickets for Super Bowl XLIX between the New England Patriots and their beloved Seahawks, and traveled to Arizona to attend the game. Yet, the online ticket retailer crushed their dream when, only hours before kickoff, it admitted to not having their “guaranteed” tickets.

The Lawsuits

The State of Washington recently filed a lawsuit against that online ticket retailer, SBTickets.com, for violations of its Consumer Protection Act.[1] A Seattle-based law firm filed a similar lawsuit in Arizona as a class action for violations of the Arizona Consumer Fraud Act, breach of contract, promissory estoppel, unjust enrichment, and fraud.[2] Whether or not they are ultimately successful, the lawsuits provide lessons for both consumers and businesses.

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Posted by Michael Mayer
Business Litigation
March 30, 2015

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