A claim against the US government under the "Takings" clause of the Constitution will proceed notwithstanding prior bankruptcy court litigation. Long given short shrift by the federal courts (and federal regulators), the concept of a government "taking" originates in some famous language of the Magna Carta dating back to 1215: No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. The Fifth Amendment to the US Constitution expressed this idea in 1791, saying that no person shall: [B]e deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use,...

Ultimately the Supreme Court is going to have to decide this one. The score is now 5-5 with one abstaining. The Fourth Circuit Court of Appeals holds that "manifest disregard" of the law is still a grounds for arbitral vacatur even after Stolt-Nielsen and Hall Street. The circuits are now split on the issue, and SCOTUS will likely have to settle the dispute. Given the strong pro-arbitration stance of the Court, it is difficult to see the current Court restricting arbitral discretion, but there has been a growing backlash against the pro-arbitral jurisprudence of the last 30 years. Current circuit status is: "Who cares about the law? The arbitrator is God."-- First Circuit   Ramos-Santiago v. UPS, 524 F.3d 120 Fifth Circuit  ...

Choice-of-law provisions may be void as a matter of public policy when determining if someone is an independent contractor or employee, says the Ninth Circuit. Despite contract language specifying application of Georgia law (which would have found for the employer), the Court of Appeals for the Ninth Circuit reversed a trial court and found that the public policy of California would not permit application of Georgia law. Under Georgia law, contract language specifying that the relationship was that of an independent contractor creates a presumtion that the putative employee must rebut. California law says that once a prima facie case is made, the putative employer must bear the burden of showing that the relationship is as the contract says. The 9th Circuit held: Georgia law...

An advertising company purporting to work on behalf of Franchise Gator has been sanctioned by a California court. Trancos Inc sent a series of emails pitching various products, one of which purported to be an advertisement sent on behalf of Franchise Gator: The subject line stated:"Be Your Own Boss! You could own a franchise!"The body of the e-mail consisted of a commercial advertisement purportedly by Franchise Gator. E-mail No. 2 advises recipients they may opt out by sending a copy of the e-mail to Franchise Gator at a Seattle address or by clicking on a link. The email was one of 8 different emails sent to attorney Daniel Balsam. The attorney maintains over 100 different email addresses and sues companies sending unsolicited emails. The trial court found that...