A Victory for the Little Guy

On April 2, 2014, consumer food giant General Mills changed its online Privacy Policy and Legal Terms to require that anyone downloading coupons, or participating in on-line communities concerning the company’s brands (including possibly even “liking” them on Facebook), would be giving up their right to sue the company in court, instead subjecting themselves to mandatory arbitration.  When news of this change was reported by The New York Times, there was an instant backlash.  On April 17, the company announced “we’re changing back. Consumers asked us to go back to our old legal terms, and we did.”  See the company’s explanation and apology here.


Mandatory arbitration in consumer contracts is a widespread and widely misunderstood phenomenon.  While generally enforceable, each arbitration agreement tends to be unique.  CRK has extensive experience in arbitration, including litigating whether arbitration agreements permit class action arbitration. 


More on Arbitration and Class Action Waivers

FINRA, the Financial Industry Regulatory Authority, issued a decision finding that Charles Schwab & Co. Inc. violated FINRA rules by attempting to keep investors from participating in class actions by adding waiver language to its customer account agreements.  The FINRA Board of Governors also upheld a FINRA arbitration hearing panel decision finding that the brokerage firm’s attempt to prevent arbitrators from consolidating more than one party’s claim in a FINRA arbitration forum violated FIRNA rules.  Read the decision here.


CRK is compiling substantial experience litigating issues of class action and collective action arbitrability, and class action and collective action waivers in employment and consumer contracts.  This is a rapidly developing area of law that touches virtually anyone who signs agreements with an employer, a manufacturer, a financial institution or a service provider. 


President Obama Seeks Broad Expansion of Overtime Pay

President Obama announced today that he will ask the Department of Labor to expand overtime pay eligibility for millions of workers who are exempt from receiving it under current law.  It is expected that the changes would require overtime pay at time-and-a-half for those currently classified as “supervisors” under the FLSA’s white collar exemption.  This announcement comes shortly after the White House’s push to raise the minimum wage to $10.10 per hour for certain federal contractors.  Read more about the overtime expansion by clicking here.


Cuyahoga County Commercial Docket Continued

In late June, the Cuyahoga County Court of Common Pleas voted to continue its Commercial Docket project.  In a Commercial Docket county, complaints about contract violations, fraud, trade secrets, non-competition agreements, shareholder lawsuits, business creation or liquidation disputes, antitrust claims, insurance coverage and director and officer liability suits are assigned to a specialized Commercial Court.  Lucas and Hamilton counties also permanently approved their Commercial Docket projects last month, although the other county which launched a pilot Commercial Docket program – Franklin – decided to reject theirs. 

The approval by the Cuyahoga Court of Common Pleas modified the pilot Commercial Docket Project, which started in 2008, by expanding the number of judges handling commercial cases from two to four.  The four judges will be appointed by the Chief Justice for fixed terms of three (3) years.  Details about how the judges’ terms will be staggered and when the additional commercial judges will start are still being discussed.  

Cohen Rosenthal & Kramer has litigated numerous cases on the Commercial Docket since its inception, and looks forward to continuing to do so.  


D.C. District Court Strikes 1949 Law Banning Courthouse Protests

D.C. District Court Judge Beryl A. Howell struck down a 1949 law banning, among other things, one to “parade, stand, or move in processions or assemblages” on the Supreme Court grounds or inside the Court itself.  In her 68-page opinion, Judge Howell stated that “[i]t cannot be possibly consistent with the First Amendment for the government to so broadly prohibit expression in virtually any form in front of a courthouse, even the Supreme Court . . . .”  Click here to read her full opinion.