In the U. S. District Court for Oregon, the Honorable Judge Anna J. Brown issued an opinion on whether the Federal Arbitration Act (FAA) prevents Oregon's Legislative Assembly from regulating certain arbitration agreements. Judge Brown opined, in essence, that ORS 36.620(5) was stillborn. This note points out the following:
• ORS 36.620(5) was not at issue, making the opinion dicta.
• Judge Brown, herself, deemed the motion moot.
• The circumstances prevented Judge Brown from being fully informed before rendering her opinion.
Facts of the Case.
Alterra Healthcare Corporation hired Deanna Bettencourt on November 9, 2006 as a resident assistant grossing $8.50 per hour. In February 2007, the employer asked Deanna to sign the purported arbitration agreement. Her signature did not coincide with any raise or promotion.
Ms. Bettencourt complained about changes her boss made in her time records that had the effect of taking money from her. Afterwards, the company, now known as Brookdale Senior Living Communities, Inc., fired Deanna. Ms Bettencourt alleges that the termination was in retaliation for asserting her rights under Oregon's wage laws.
Circumstances deprived Judge Brown of full Briefing.
We filed the lawsuit in the Oregon Circuit Court for Multnomah County. Defendants removed, and moved to abate the case pending arbitration. Defendant's supporting memorandum was rather perfunctory, consisting of roughly 2 pages of facts and 4 pages of argument. In her 20-page response, plaintiff raised many issues that were not raised in the motion, and we requested oral argument. Judge Brown ruled without the benefit of oral argument - or any argument from Plaintiff - on the issue of whether the FAA preempts ORS 36.620(5).
ORS 36.620(5) was not at issue
ORS 36.620(5) became effective in 2008. Because Ms. Bettencourt signed the purported agreement in 2007, ORS 36.620(5) was not at issue. Consequently, Judge Brown's opinion on the matter was pure dicta - for information to the bar on how she views the matter based upon the incomplete record before her.
Plaintiff never argued that ORS 30.620(5) prevented the enforcement of the purported agreement. Instead, we argued that, under Oregon's Common Law, the purported arbitration agreement was void as against public policy. To bolster our common law argument, we stated:
"Since the time Plaintiff signed Exhibit 1, Oregon's statutory law has confirmed the common law analysis: Arbitration agreements shoved in front of existing employees are not enforceable. ORS 36.620(5)(2007)."
Because ORS 36.620(5) was not before the court, any interpretation of it -- or purported invalidation of it -- is dicta.
Judge Brown Never Ruled on The Defense Motion to Compel Arbitration.
After brushing aside Plaintiff's legal arguments, Judge Brown held that there was a triable question of fact as to whether an agreement existed. Judge Brown directed the parties submit a plan to resolve the issue. As it turned out, the parties mooted the issue.
In a minute order dated February 9, 2010, Judge Brown deemed the Motion to Compel Arbitration moot.
Conclusion
If defense counsel start waiving around Judge Brown's opinion, plaintiff's counsel must explain that the ruling was (1) not based on full information, (2) pure dicta, and (3) deemed moot.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
