 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Armendariz v. Foundation Health Psychcare Services8/24/2000
. 00C1543) 2000 WL 875396 at p. *3 (McCaskill) [compelling arbitration because there was no evidence that the costs of arbitration would be prohibitively expensive for the employee]; Cline v. H.E. Butt Grocery Co. (S.D. Tex. 1999) 79 F.Supp.2d 730, 733 (Cline) [compelling arbitration because there was no evidence that the employee would have to pay any costs or that the employee could not afford to do so].) Indeed, the uniqueness of each case makes it impossible for any court to "conclude that the payment of fees will constitute a barrier to the vindication of . . . statutory rights" without knowing the exact amount the employee must pay. (Arakawa, supra, 56 F.Supp.2d at p. 355.)
Accordingly, I would reject the majority's approach and follow the approach suggested by courts in several other jurisdictions. (See, e.g., Rosenberg, supra, 170 F.3d at p. 16; McCaskill, supra, 2000 WL 875396 at p. *3; Cline, supra, 79 F.Supp.2d at p. 733; Arakawa, supra, 56 F.Supp.2d at pp. 354-355; see also Williams, supra, 197 F.3d at pp. 765-766.) As long as the mandatory arbitration agreement does not require the employee to front the arbitration forum costs or to pay a certain share of these costs, apportionment should be left to the arbitrator. When apportioning costs, the arbitrator should consider the magnitude of the costs unique to arbitration, the ability of the employee to pay a share of these costs, and the overall expense of the arbitration as compared to a court proceeding. Ultimately, any apportionment should ensure that the costs imposed on the employee, if known at the onset of litigation, would not have deterred her from enforcing her statutory rights or stopped her from effectively vindicating these rights. (See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614, 637 [" o long as the prospective litigant effectively may vindicate statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function."]; Arakawa, supra, 56 F.Supp.2d at p. 355.)
If the employee feels that the arbitrator's apportionment of costs is unreasonable, then she can raise the issue during judicial review of the arbitration award. (See Rosenberg, supra, 170 F.3d at p. 16 [judicial review is sufficient to guard against the imposition of unreasonable fees]; Koveleskie, supra, 167 F.3d at p. 366 [same].) I believe such an approach is preferable because it accounts for the particular circumstances of each case without sacrificing the employee's statutory rights.
BROWN, J.
I CONCUR:
CHIN, J.
Court: Superior
County: Marin
Judge: Lynn Duryee* *Judge of the former Municipal Court for the Marin Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|