ARBITRATION CLASS 3

1. ARBITRATION CLASS 3 SEPTEMBER 3, 2008 LIMITS OF ARBITRATION EVIDENCE U OF O LAW SCHOOL--MIKE TEDESCO

2. THE EFFECT OF GARDNER-DENVER • GARDNER DENVER ALLOWS A UNION EMPLOYEE TO GO INTO COURT EVEN THOUGH THEY GRIEVED EMPLOYMENT DISCRIMINATION THROUGH A LABOR AGREEMENT • DISTINGUISHED BY NOTING THAT A LABOR ARBITRATOR IS LIMITED TO THE LABOR CONTRACT AND DOES NOT ENFORCE THE LAW • ALSO THERE IS A CONCERN IN LABOR ARBITRATION THAT THE RIGHTS OF THE INDIVIDUAL WILL BE SUBORDINATED TO THE RIGHTS OF THE LARGER BARGAINING UNIT U OF O LAW SCHOOL--MIKE TEDESCO

3. RECONCILING GILMER WITH GARNER-DENVER • WHAT IS BEING WAIVED • WHO IS WAIVING IT • THE SUPREME COURT IN WRIGHT ADDRESSED THE ISSUE OF WAIVER AND SAID THAT FOR A WAIVER OF STATUTORY RIGHTS TO BE EFFECTIVE, IT MUST BE “CLEAR AND UNMISTAKABLE” AND THAT THE WAIVER MUST BE “PARTICULARLY CLEAR” U OF O LAW SCHOOL--MIKE TEDESCO

4. Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (2002) U OF O LAW SCHOOL--MIKE TEDESCO

5. THE 9TH CIRCUIT DECISION • ON REMAND FROM A SHARPLY DIVIDED SUPREME COURT • EARLIER DECISION OF THE 9TH CIRCUIT WAS THAT THE FAA DID NOT APPLY TO THIS SITUATION, THE SUPREME COURT DISAGREED U OF O LAW SCHOOL--MIKE TEDESCO

6. FACTS AND SETTING • ADAMS SIGNED AN AGREEMENT THAT ALL CLAIMS WOULD BE ARBITRATED • SEVERE LIMITATIONS ON DAMAGES WERE IMPOSED • THE COST WERE SHARED UNLESS THE EMPLOYEE WINS • UNDERLYING CLAIM WAS SEXUAL HARASSMENT U OF O LAW SCHOOL--MIKE TEDESCO

7. THE WAIVER CLAUSE AND CALIFORNIA LAW • THIS IS A CONTRACT OF ADHESION • STANDARD FORM • DRAFTED BY A PARTY WITH SUPERIOR BARGAINING POWER • PRESENTED ON A TAKE IT OR LEAVE IT BASIS U OF O LAW SCHOOL--MIKE TEDESCO

8. SUBSTANTIVELY UNCONSCIONABLE • SINCE IT WAS ONE SIDED-IT DEALT WITH ONLY THE EMPLOYEES CLAIMS • SINCE IT EXCLUDED DAMAGES THAT WOULD OTHERWISE BE AVAILABLE U OF O LAW SCHOOL--MIKE TEDESCO

9. BUT WHAT ABOUT GILMER? • GILMER SAYS IN ARBITRATION YOU MUST BE ABLE TO PURSUE STATUTORY CLAIMS • THE COLE REQUIREMENTS WERE NOT MET REGARDING • UNREASONABLE COSTS • DOES NOT PROVIDE THE TYPES OF RELIEF AVAILABLE IN COURT U OF O LAW SCHOOL--MIKE TEDESCO

10. EEOC V. WAFFLE HOUSE • 534 US 279 (2002) • JUSTICE STEVENS U OF O LAW SCHOOL--MIKE TEDESCO

11. FACTS AND SETTING • BAKER WORKED THE GRILL • HE HAD A SEIZURE • HE WAS FIRED • HE FILED WITH THE EEOC WHO PURSUED AND ENFORCEMENT ACTION • COMPANY FILED TO COMPEL ARBITRATION U OF O LAW SCHOOL--MIKE TEDESCO

12. THE CONTRACT TO ARBITRATE • ALL EMPLOYEES, AS A CONDITION OF EMPLOYMENT WERE REQUIRED TO SIGN U OF O LAW SCHOOL--MIKE TEDESCO

13. THE ROLE OF THE EEOC • IT IS THE ENFORCEMENT AGENCY OF THE FEDERAL GOVERNMENT • IT CONTROLS THE PROCESS • EMPLOYEE MAY INTERVENE ONLY • IT CAN SEEK A WIDE VARIETY OF DAMAGES • THE EEOC WAS NOT A PARTY TO THE AGREEMENT U OF O LAW SCHOOL--MIKE TEDESCO

14. HOLDING • THE COURT ENDORSES THE FAA AND ARBITRATION IN GENERAL • BUT THE COURT NOTES THAT THE FAA ENFORCES CONTRACTS AND THE EEOC WAS NOT A PARTY TO THE CONTRACT U OF O LAW SCHOOL--MIKE TEDESCO

15. HOOTERS OF AMERICA V. PHILLIPS • THE AGREEMENT TO ARBITRATE IS INVALID IN LIGHT OF PROCEDURAL PROBLEMS • THE PROCESS SEEMS DESIGNED TO HELP THE COMPANY PREPARE A DEFENSE • ENSURE A BIASED DECISION MAKER (THEY CONTROL THE LIST) • THE COMPANY CONTROLS WHICH ISSUES GO FORWARD • THE COMPANY ONLY CAN TRANSCRIBE • THE COMPANY ONLY CAN VACATE • THE COMPANY CAN CHANGE THE RULES AT ANY TIME U OF O LAW SCHOOL--MIKE TEDESCO

16. GETTING PRACTICAL EVIDENCE/OBJECTIONS U OF O LAW SCHOOL--MIKE TEDESCO

17. THE MECHANICS OF MAKING OBJECTIONS • SIT DOWN! • DON’T MAKE A SPEAKING OBJECTION • STATE THE BASIS FOR YOUR OBJECTION FIRST • STATE YOUR ARGUMENT REGARDING THE OBJECTION SECOND • ADDRESS THE OBJECTION TO THE ARBITRATOR AND NOT YOUR OPPONENT U OF O LAW SCHOOL--MIKE TEDESCO 17

18. HEARSAY EXCEPTIONS • PARTY ADMISSIONS • PRESENT SENSE IMPRESSION • EXCITED UTTERANCE • STATE OF MIND • STATEMENT MADE FOR MEDICAL TREATMENT • DYING DECLARATION U OF O LAW SCHOOL--MIKE TEDESCO 18

19. HEARSAY OBJECTION IS RARELY SUSTAINED • GENERALLY IT WILL BE PERMITTED AND WILL BE GIVEN APPROPRIATE WEIGHT • WHEN THE OBJECTION IS SUSTAINED IT WILL BE BECAUSE • THE INFORMATION OFFERED IS REALLY NOT RELEVANT TO BEGIN WITH • THE HEARSAY IS FROM A WITNESS WOULD BE AVAILABLE • BECAUSE WHAT IS SOUGHT TO BE PROVED THROUGH THE HEARSAY IS SO CRITICAL TO THE CASE THAT THE ARBITRATOR FINDS THE TESTIMONY TOO UNRELIABLE U OF O LAW SCHOOL--MIKE TEDESCO 19

20. STIPULATIONS • ARE PERMITTED AND OFTEN SHORTEN THE HEARING BY AVOIDING WITNESSES TESTIMONY TO INFORMATION WHICH IS NOT IN DISPUTE • BEWARE OF STIPULATIONS THAT CAN DISRUPT THE FLOW OF YOUR CASE U OF O LAW SCHOOL--MIKE TEDESCO 20

21. JUDICIAL NOTICE • SAME RULES APPLY AS THEY DO IN COURT PROCEEDINGS U OF O LAW SCHOOL--MIKE TEDESCO 21

22. INTRODUCTION OF EXHIBITS AND TESTIMONY AND APPROPRIATE FOUNDATION U OF O LAW SCHOOL--MIKE TEDESCO 22

23. FOUNDATION • PROVIDES THE ARBITRATOR WITH INFORMATION THAT THE EVIDENCE ABOUT TO BE RECEIVED IS: • RELEVANT • ADMISSIBLE • RELIABLE U OF O LAW SCHOOL--MIKE TEDESCO 23

24. IF HARRY IS GOING TO TESTIFY TO SEEING THE CAR IN THE PARKING LOT • THAT HARRY CAN SEE • YOU MUST ESTABLISH THAT HARRY HAD THE OPPORTUNITY TO SEE THE CAR IN THE PARKING LOT U OF O LAW SCHOOL--MIKE TEDESCO 24

25. ANOTHER EXAMPLE: FOUNDATION FOR EVIDENCE REGARDING CONVERSATIONS • DATE • TIME • PLACE • WHO ELSE WAS PRESENT U OF O LAW SCHOOL--MIKE TEDESCO 25

26. FOUNDATION FOR DOCUMENTS • AUTHENTICATION THROUGH WITNESSES • TESTIMONY AS TO RECEIPT OF DOCUMENT—MAIL BOX RULES • ORIGINAL DOCUMENTS-NOT USUALLY A PROBLEM IN ARBITRATION U OF O LAW SCHOOL--MIKE TEDESCO 26