CONSUMER ARBITRATION AGREEMENTS AND COLLECTIVE ACTION WAIVERS: WHY THE SUPREME COURT’S DEFENSE OF ARBITRATION HAS GONE TOO FAR

ALEXANDER HYDER

ABRITRATION AGREEMENTS – COLLECTIVE ACTION WAIVERS –FEDERAL ARBITRATION ACT –Over the last two decades, the Supreme Court of the United States has been attempting to shrink lower court dockets with decisions both protecting and promoting the use of arbitration.  What seems commendable in the abstract, however, has come at a steep price in reality.  Consumers and other small-dollar claimants are kept from effectively vindicating their rights under consumer and anti-trust law, thereby permitting injurious conduct to go undeterred, unnoticed, and unsettled.  The problem appears to have climaxed following the Court’s decision in American Express Co. v. Italian Colors Restaurant, in which the Court cemented the enforceability of arbitration clauses with collective action waivers once held to be unconscionable under state contract law.  These provisions, increasingly found in standard form adhesion contracts, bind parties of grossly unequal bargaining power to bilateral arbitration without the ability of cost sharing, collaboration, or class actions.  In effect, these provisions operate to immunize the larger drafting party from liability for violations of consumer and anti-trust law.  This paper explores the underlying cause of the issue, as well as the effects of the Court’s jurisprudence on both corporations and would be claimants.   It also analyzes the diminished, if not eviscerated, ability to privately enforce consumer and anti-trust law, and explores who is in the best position to fill the enforcement void left by the now powerless private actor.

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Filed under Volume 16-1

‘WORKING FROM HOME’ OR ‘SHIRKING FROM HOME’: MCMILLAN V. CITY OF NEW YORK’S EFFECT ON THE ADA

MARY HANCOCK

Americans with Disabilities Act – Largely due to the rise of the technology era, the employment landscape across the United States has dramatically changed through past decades. Congress has provided little guidance to courts who are struggling to apply antiquated case law to cutting edge technology.  The Americans with Disabilities Act of 1990 is one of many Congressional enactments undergoing change through the removal of employment presumptions of the past.   The decision in McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013), is one example of this change.  The Second Circuit expressly declined to follow the presumption that physical presence is a requisite of virtually all employment.

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Volume 15.2 Table of Contents

ANOTHER POTENTIAL CAPITAL GAIN: CAN AN EXCHANGE OF CONDOMINIUM UNITS FOR COOPERATIVE APARTMENTS QUALIFY AS A SECTION 1031 LIKE-KIND EXCHANGE?>
Dr. Valeriya Avdeev

THE STOCK ACT: IS IT NECESSARY AND IF SO IS IT A SUFFICIENT SOLUTION?
Joshua Michael Brick

SEXUAL HARASSMENT IN THE WORKPLACE: HURDLES OF A MODERN “ROSIE THE RIVETER”
Maggie M. Lewis

PA LAW FAVORS GAS & OIL COMPANIES “IN PAYING QUANTITIES”
Amy Coleman

THE THIRD CIRCUIT ENUNCIATES A NEW TEST FOR DETERMINING JOINT EMPLOYERS UNDER THE FAIR LABOR STANDARDS ACT IN IN RE ENTERPRISE RENT-A-CAR WAGE & EMPLOYMENT PRACTICES LITIGATION
Lindsay Kreppel

THE PENNSYLVANIA RACE HORSE DEVELOPMENT AND GAMING ACT AND ITS GOVERNING COMMITTEE, THE PENNSYLVANIA GAMING CONTROL BOARD: MASON-DIXON RESORTS, L.P. V. THE PENNSYLVANIA GAMING CONTROL BD.
Katie Pakler

THE “RULE OF REASON” PREFERRED TO “SCOPE OF PATENT” ANALYSIS WHEN DETERMINING WHETHER A REVERSE PAYMENT IS LEGAL IN THE THIRD CIRCUIT: IN RE K DUR ANTITRUST LITIGATION
Linda M. Postol

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ANOTHER POTENTIAL CAPITAL GAIN: CAN AN EXCHANGE OF CONDOMINIUM UNITS FOR COOPERATIVE APARTMENTS QUALIFY AS A SECTION 1031 LIKE-KIND EXCHANGE?

DR. VALERIYA AVDEEV

Consider the following hypothetical: A sole owner and member of a New York Limited Liability Company (LLC) contemplates an exchange of five condominium units and some monetary consideration for three cooperative apartments. All of the properties are located in the improving neighborhoods of New York City. The LLC has been renting all of the condominium units to tenants on short-term leases, fully furnished. Furthermore, LLC owns all of the condominium units free and clear of debt.  Recently however, the owner of the LLC became concerned about the financial stability of the condominium units, yet does not wish to sell the units in a taxable transaction.  Continue Reading…

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Filed under Volume 15-2

THE STOCK ACT: IS IT NECESSARY AND IF SO IS IT A SUFFICIENT SOLUTION?

JOSHUA MICHAEL BRICK

The original version of the Stop Trading on Congressional Knowledge Act (hereinafter “the STOCK Act”) was introduced by U.S. Representatives Louise Slaughter (D-N.Y.) (hereinafter “Representative Slaughter”) and Brian Baird (D-Wash.) (hereinafter “Representative Baird”) in the House of Representatives on March 28, 2006.  Upon introducing the STOCK Act, Representative Slaughter explained that existing insider trading laws, did “not apply to nonpublic information about current or upcoming congressional activity.”Continue Reading…

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SEXUAL HARASSMENT IN THE WORKPLACE: HURDLES OF A MODERN “ROSIE THE RIVETER”

MAGGIE M. LEWIS

In the early twentieth century, the primary role of women in society was to take care of the home while their husbands went to work.  As World War II began to intensify in 1941, the definition of the word “home” quickly began to change to include a broad scope for American women:  the United States.  While men were drafted and taken away to war, the government quickly recognized that there was a need to replenish the factories with workers to compensate for the loss of men. Continue Reading…

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Filed under Volume 15-2