Employer Cannot Compel Arbitration After Initially Claiming Employee?s Claim was Not Ripe for Arbitration

The plaintiff in this case had signed an AAA arbitration? agreement? at? the? time ?of? his? hire. Several years later the plaintiff was accused of having an inappropriate relationship in the workplace. ?The plaintiff responded that he was a victim of sex discrimination and defamation, and requested arbitration of the dispute. ?The employer claimed the dispute was not ripe for arbitration. Two months later the employer terminated the plaintiff?s employment and the plaintiff filed suit in court.? ?The district court refused to compel arbitration and the Ninth Circuit reversed.? ?The panel held 2-1 that the question of whether the employer had waived its right to arbitrate was for the court rather than the arbitrator.? ?Otherwise, arbitration would occur when it might have been waived.? ?Judge O?Scannlain dissented from this holding. ?On the merits, the court held the plaintiff failed to follow AAA procedures in invoking arbitration initially but that it did not prevent him from asserting waiver.? ?It then held that the employer?s conduct did not meet the standard for waiver ?of arbitration under California law. ?Cox v.?Ocean View Hotel Corp., 533 F.3d 1114 (9th ?Cir. 2008) (Tashima, O?Scannlain, M. Smith). rely on last year?s or even last month?s research.? The court recognized that duplication of legal work is often ?necessary.??? The panel sensibly recognized that plaintiffs? lawyers are unlikely to pad their hours in contingency cases because the pay off is too uncertain. ??By and large, the court should defer to the winning lawyer?s professional judgment as to how much time he was required to spend on the case; after all he won, and might not have, had he been more of a slacker.??? The panel ruled that a district court can give the plaintiff a 10% haircut without a specific explanation, ?but ?no ?more.?? ?In? this? case,? the district court had imposed numerous reductions after the plaintiff?s attorney had already cut her hours by 9%, without explaining its reasoning. The appeals court ruled that failing to give an explanation for each reduction was an abuse of discretion.??? ?The?? appeals?? court?? held?? it?? was improper to cut the plaintiff?s attorneys? fees because other or larger firms would have used less? experienced? and? less? expensive? lawyers. ?The district court?s inquiry must be limited to determining whether the fees requested by this particular? ?legal? ?team?? are? ?justified? ?for? ?the particular work performed and the results achieved in this particular case.?? ?The panel also reasoned it was improper to deny plaintiff?s counsel a particular hourly rate simply because it was higher than the rates previously allowed in the district. In sum, ?if opposing counsel cannot come up specific reasons for reducing the fee request that the district court finds persuasive, it should normally grant the award in full, or with no more than a haircut.? ?Moreno v. Sacramento, 534 F.3d 1106 (9th Cir. 2008) (Kozinski, Cowen (3rd Cir.), Hawkins).