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Working the Corners
Curtis Pashelka on the San Jose Sharks
Setoguchi's immediate reaction — hurt after signing new deal, looking forward to new opportunity
Posted on June 24, 2011 by David Pollak
Talked to Devin Setoguchi, who's in Taber, Alberta, with his family.
Here's what he had to say:
"You know it's a business. It's just tough to leave the guys and the family I know so well. Especially after just signing a new deal. It really hurts and puts a damper on the whole thing.
"But I have an opportunity now to go play with a younger core group of guys on a team that's on the uprise and I get a chance to help another organization.
"Obviously I'm going to miss San Jose a lot and miss the guys, but it's a new start."
He got a call from Doug Wilson about 15 minutes before the news broke. He and his family were dining out in Taber at a restaurant that had a TV tuned to the draft.
"They had the TV on and the entire restaurant just kind of went nuts and came over and started talking to me," Setoguchi said.
He quickly got in contact with some of his San Jose teammates.
"A couple of guys have already called me and I even called a couple."
Overall, he added, "it's not a good feeling, but it's a business and things happen. You've just got to look forward to the opportunity and get excited about it."
David Pollak
David Pollak has been following the NHL forever and at the Mercury News as an editor or reporter since 1987. For almost a decade he wrote about the Sharks as the paper's Fan in the Stands before joining the sports department in 2001. He became the Sharks beat writer before the 2007-08 season and began this blog at that time. You can also follow him on Twitter at @PollakOnSharks.
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Ending Forced Arbitration In The Workplace
Justice Denied: An Abridged History of How the U.S. Supreme Court Forced Arbitration on America's Workers
The Faces Of Forced Arbitration
Workers Beware: Forced Arbitration Can Happen To You
Reforming Summary Judgment In Employment Litigation
Protecting The Employment Rights Of Immigrants & Refugees
Cultivating The Next Generation Of Employee Rights Advocates
The Chaw Legacy Fund
To Advance The Institute's Future
Using Cy Pres To Transform The Workplace
Home | Our Work | Ending Forced Arbitration In The Workplace | Justice Denied: An Abridged History of How the U.S. Supreme Court Forced Arbitration on America's Workers | The Question Of Arbitrability: What Is It & Who Decides?
The Question Of Arbitrability: What Is It & Who Decides?
Under the modern interpretation of the Federal Arbitration Act (FAA), companies routinely use forced arbitration clauses to hide employees' claims of discrimination, retaliation, wage theft, and other workplace violations from public view. In forced arbitration proceedings, claims of employer wrongdoing may be decided in closed-door proceedings by company-paid arbitrators using rules promulgated by the employer. Increasingly, employees who object to this rigged system find their employers have included a "delegation provision" in their forced arbitration clauses, consigning those complaints to arbitration as well.
Having the power to hide most employment disputes in arbitration is a relatively recent jurisprudential win for employers. Historically, the U.S. Supreme Court rejected the idea that most complex claims, like employment disputes (which often raise interwoven issues of contract and public policy), even were "arbitrable," or that they could be fairly decided in a private arbitral forum. In assessing the "arbitrability" of a claim, courts considered whether it was proper for a dispute to be heard by an arbitrator who was empowered to enforce the contract between the parties but lacked the power to enforce the law. Courts would assess the arbitrator's ability, under the terms of the agreement, to render a full and fair hearing in the matters before them. They could also consider the impact forcing arbitration might have on public policy, such as whether it would be appropriate to enforce an arbitration clause in a contract of adhesion disseminated by a party with substantially more bargaining power.
In determining whether a claim is "arbitrable" today, the Court limits its scrutiny to whether parties "agreed to arbitrate," and it sees no problem with finding such an agreement is present, even in preprinted contracts of adhesion presented to vulnerable employees and consumers on a take-it-or-leave-it basis.
Additionally, within the last decade, the U.S. Supreme Court has substantially weakened the plaintiff's ability to fight the enforcement of ill-gotten arbitration provisions by sanctioning the use of "delegation provisions". These clauses, which are usually found within the arbitration provision itself, typically provide that any dispute as to the arbitrability of a complaint should be decided by an arbitrator, not a court. Delegation provisions have not only disempowered courts from ruling on the question of arbitrability, they have increasingly empowered for-profit arbitrators to decide whether they, themselves, have the power to hear and rule on a person's claims.
Starting in 1953, this timeline carries readers to present-day, reviewing along the way the question of what arbitrability is, who decides whether a matter is arbitrable, and how the U.S. Supreme Court's view on this issue has evolved over time. Click on any moment in the timeline to read the case history.
The Court holds that some claims may be non-arbitrable due to their complexity, the need for in-depth factfinding, or as a matter of public policy.
Wilko v. Swan, 346 U.S. 427 (1953)
Relevant Facts: Customers of a securities brokerage firm sued under the Securities Act of 1933, a law designed to protect the rights of investors. The brokers who allegedly defrauded their customers tried to force arbitration under the terms of the consumer contract.
Question Before The Court: Whether a pre-dispute arbitration clause can legally require a person acquiring securities to waive compliance with certain provisions of the Securities Act.
The Opinion: After first establishing that the Federal Arbitration Act (FAA) applied to purchases of stocks and securities, the Court addressed whether the Securities Act carved out an exception to the FAA. To determine whether arbitration should be compelled, the Court looked to the primary purpose of both federal statutes, and found that the Securities Act was written to help equalize an inherently unequal bargaining position between buyers and sellers of securities by, inter alia, giving buyers a wider choice of courts and venues. The Court found that the pre-dispute arbitration clause at issue here required the buyer to "surrender on the advantages the Act gives him and surrenders it at a time when he is less able to judge the weight of the handicap the Securities Act places upon his adversary."
The Court noticed three problems faced by plaintiffs if compelled to arbitrate. First, the matter at issue required not just the simple determination of the value of a commodity or the amount of money due under a contract, but a subjective finding by the arbitrator on the purpose and knowledge of an alleged violator of the law, without the benefit of judicial instruction on what the law requires. Second, the arbitrator's decision could be rendered without explanation, without a complete record, and without any subsequent ability to review the legal standards applied. Finally, the power to vacate the award was severely limited under the Federal Arbitration Act (FAA), with no provision for judicial review for error in interpretation or determination of legal issues.
Although the Court recognized that, through the FAA, people have "an opportunity to generally secure prompt, economical and adequate solution of controversies through arbitration if the parties are willing to accept less certainty of legally correct adjustment," they ultimately held that the intentions of Congress in passing the Securities Act could only be carried out by holding the arbitration agreement invalid with respect to issues arising out of that law.
Unfortunately, the holding of this case was later hollowed out in Shearson/ American Express, Inc v. McMahon, 482 U.S. 220 (1987), and then fully overturned in R. de Quijas v. Shearson/American Express, 490 U.S. 477 (1989).
The Court rules that where a party alleges both a contract and its arbitration clause were obtained by fraud, the question of the arbitration clause's enforceability is for a court to decide.
Moseley v. Electronic & Missile Facilities, 374 U.S. 167 (1963)
Relevant Facts: A plumbing and heating contractor subcontracted with a primary contractor under a contract with the U.S. Department of Defense. The subcontract included an arbitration clause which provided for arbitration in New York. The plaintiff-subcontractor initiated a statutory claim under the Miller Act in Georgia, where the work under the subcontract was performed, alleging fraud in the inducement of both the contract and the arbitration agreement.
Question Before The Court: Whether a court or an arbitrator should determine the enforceability of an arbitration clause.
The Opinion: The Court found that where the petitioner alleged both the contract and the arbitration agreement were obtained by fraud, "[u]nder either the Miller Act or the [Federal Arbitration Act] (FAA), it seems clear that the issue of fraud should first be adjudicated [in a judicial forum] before the rights of the parties under the subcontract can be determined." The Court sent the case back to the district court, where, if that court found fraud, the arbitration clause would be held unenforceable.
The concurring opinion emphasized that the question of fraud in the procurement of an arbitration agreement is a judicial one: "To allow this question to be decided by arbitrators would be to that extent to enforce the arbitration agreement even though steeped in the grossest kind of fraud."
In promulgating a new "severability doctrine", the Court changes the standard for assessing the enforceability of an arbitration clause.
Prima Paint Corp. v. Flood Conklin Mfg. Co., 388 U.S. 395 (1967)
Relevant Facts: Two companies entered into a contract. One sued the other for breach of contract and fraudulent representation. In the lower courts, the defending company successfully sought to compel arbitration under a broad arbitration clause in the agreement.
Question Before The Court: Whether arbitration clauses are severable from the contracts that contain them.
The Opinion: The Court found that, because the Federal Arbitration Act (FAA) specifies the manner in which federal courts are to treat questions relating to arbitration clauses, in considering whether to compel arbitration under the FAA, "a federal court may not consider a claim of fraud in the inducement of the contract generally . . . but may consider only the issues relating to the making and performance of the agreement to arbitrate."
With that framework in mind, the Court held that arbitration clauses are severable from the contracts that contain them. In the Court's view, Section 4 of the FAA requires courts to order arbitration once it is satisfied that the "making of the agreement to arbitrate . . . is not at issue." Since the challenge in this case was to the formation of the contract, at large, rather than specifically to the arbitration clause contained within, and because there was no evidence that the parties intended to prevent this type of claim from being submitted to arbitration, the Court ruled that the FAA demanded the claim proceed in arbitration.
With the Prima Paint ruling, courts must look at challenges to arbitration clauses separately from challenges to the contracts that contain them. If a person challenges a contract at large, unless a specific challenge to the arbitration clause itself is launched, the court will compel arbitration, regardless of the possible unenforceability of the larger contract.
The Court holds that the right to a particular court's jurisdiction and other procedural protections are waivable via a valid forum-selection clause.
The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)
Relevant Facts: A contract between two companies contained a forum-selection clause requiring any litigation to proceed in London. Later, the plaintiff filed suit in admiralty in the United States. The defendant moved for dismissal under the forum-selection clause.
Question Before The Court: Whether a choice-of-forum clause in a contract requiring all controversies to be adjudicated in an international foreign jurisdiction is enforceable.
The Opinion: At the time of this case, many courts at the federal and state level declined to enforce forum-selection clauses as a matter of public policy. With this case, the U.S. Supreme Court took the opposite approach, finding that parties are free to waive their rights to particular jurisdictions and other procedural safeguards, and holding that the forum-selection clause, which was the result of "an arm's length negotiation by experienced and sophisticated businessmen," should be binding on parties unless they can meet the heavy burden of showing that its enforcement is "unreasonable, unfair, and unjust." Disregarding concerns about the ability for parties to receive equal and just treatment in alternative forums, the Court here asserted, "The argument that such clauses are improper because they tend to 'oust' a court of jurisdiction is hardly more than a vestigial legal fiction. . . . It reflects something of a provincial attitude regarding the fairness of other tribunals."
Although this case did not involve the Federal Arbitration Act, the Court has subsequently maintained that arbitration clauses are "mere forum-selection clauses" and has enforced them based on the (frequently incorrect) assumption that they were freely negotiated by parties of equal bargaining power. See, e.g., Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (finding a strong presumption in favor of freely negotiated contractual choice-of-forum provisions). Furthermore, the Court's embrace of non-judicial forums, and its downplaying of the potential harms to plaintiffs in those forums, paved the way to an exponential increase of dispute resolution in forums other than a court of law, including forced arbitration.
Finding that employees' statutory civil rights exist independently of their contractual rights, the Court holds that employees are entitled to judicial review of Title VII claims, and actions to enforce those rights are not limited to decisions rendered by arbitrators.
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)
Relevant Facts: An employee covered by a collective bargaining agreement alleged that he was fired because of racial discrimination. After filing a grievance under the terms of the collective bargaining agreement and losing in arbitration, he filed a complaint with the EEOC. The EEOC sided with the arbitrator, and dismissed the charge brought by the worker. The employee persisted by filing a Title VII claim in federal district court. The district court, and then the appellate court, held the plaintiff had no right to sue under Title VII because he was bound by the arbitrator's finding.
Question Before The Court: Whether an employee has the right to pursue statutory claims in federal court irrespective of a requirement to arbitrate, and whether arbitration is an appropriate forum for resolving statutory claims.
The Opinion: The Supreme Court found for the worker, holding that an employee's statutory right to a new trial under Title VII of the Civil Rights Act of 1964 is not foreclosed by prior submission of his claim to final arbitration under the non-discrimination clause of a collective bargaining agreement. Identifying that "federal courts have been assigned plenary powers to secure compliance with Title VII," and contrasting those judicial powers with the powers of the EEOC, the Court noted, "There is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual's right to sue or divests federal courts of jurisdiction. . .The private right of action remains an essential means of obtaining judicial enforcement of Title VII. In such cases, the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices."
The Court's opinion also spoke directly to whether a claim is actually "arbitrable" in the sense that the arbitrator is capable of fairly rendering a decision based on the law, when it provided, "The factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of arbitral proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trial, such as discovery . . . and compulsory testimony under oath, are often severely limited or unavailable. . . . It is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts."
In considering the role of the arbitrator in adjudicating contractual claims versus statutory claims, the Court observed that "the arbitrator has authority only to resolve questions of contractual rights, and this authority remains, regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII. . . . The choice of forums inevitably affects the scope of the substantive right to be vindicated. . . In submitting his grievance to arbitration, an employee seeks to vindicate his contractual rights . . . By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. . . . We think it clear there can be no prospective waiver of an employee's rights under Title VII. . . . We hold that the federal policy favoring arbitration does not establish that an arbitrator's resolution of a contractual claim is dispositive of a statutory claim under Title VII."
The Court holds that statutory claims, such as those arising out of the Fair Labor Standards Act, are not barred from going to court by prior submission to contractual dispute resolution procedures like arbitration.
Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981)
Relevant Facts: A group of unionized truck drivers sued a trucking company for wage theft under the Fair Labor Standards Act (FLSA). The truckers began by filing a grievance per their collective bargaining agreement, which was rejected without explanation. The truckers then filed a claim in federal district court under the FLSA, which the court rejected. The Court of Appeals affirmed, concluding that the petitioners' submission to arbitration barred them from asserting an FLSA claim in court.
Question Before The Court: Whether an employee may pursue both contractual and statutory rights claims through arbitral or judicial proceedings.
The Opinion: The Court held that FLSA claims are not barred by prior submission to contractual dispute resolution procedures like arbitration. Noting that FLSA rights arise out of a statute to be considered separate from contractual rights, the Court provided, "Not all disputes between an employee and an employer are suited for binding resolution in accordance with the procedure established by [arbitration]." In reaching its decision, the Court explored when individual statutory rights outweigh the national policy favoring arbitration and engaged in a very long discussion of why arbitration is an inappropriate forum for the resolution of FLSA claims.
Unfortunately, the central holding of this case is gutted in subsequent cases, starting with Moses H. Cone Memorial Hospital v. Mercury Const. Co. 460 U.S. 1 (1983), decided just two years later.
The Court declares that the Federal Arbitration Act created a "body of federal substantive law" such that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."
Moses H. Cone Mem. Hosp. v. Mercury Const. Co., 460 U.S. 1 (1983)
Relevant Facts: A hospital contracted with a building contractor and an architect to renovate its facilities. While the contract involving the building contractor included an arbitration clause, the contract with the architect did not. After a complicated dispute concerning the cost of the project arose, multiple legal actions were filed in both state and federal court, including motions to compel arbitration.
Question Before The Court: Whether state courts have the requisite jurisdiction to grant motions to compel arbitration under the Federal Arbitration Act (FAA); how far the nation's federal policy favoring arbitration extends; and whether federal courts may defer to state courts when both are adjudicating parallel claims regarding the enforceability of an arbitration provision.
The Opinion: The Court focused on the FAA's "statutory policy of rapid and unobstructed enforcement of arbitration agreements" and professed that Section 2 of the FAA "is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. . . . The [FAA] established that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself, or an allegation of waiver, delay, or a like defense to arbitrability."
The Court was unmoved by the argument that, should the hospital be compelled to arbitrate its dispute with the building contractor, but not the architect against whom there was also pending litigation under the same facts, then it would have to resolve the two disputes in separate forums. To that point, the Court lamented that such misfortune "occurs because [the FAA] requires piecemeal resolution when necessary to give effect to an arbitration agreement. Under the [FAA], an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement." In a footnote, the Court began weighing the idea of delegating the question of arbitrability to arbitrators, providing, "Some issues that might be thought relevant to arbitrability are themselves arbitrable – further speeding the procedure under Sections 3 and 4."
The Supreme Court pronounces that courts must order arbitration whenever a valid arbitration clause is present, even in cases involving related non-arbitrable claims, state law claims, or where doing so would lead to inefficiency in the proceedings.
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985)
Relevant Facts: A retired dentist invested his life savings in the stock market, only to lose the majority of his money. He subsequently sued the investment company in federal court, alleging violations of the Securities Exchange Act (SEA) and various state statutes. The investment company responded by moving to compel arbitration of the state law claims based on an arbitration clause in the preprinted 'Customer's Agreement', and to stay that arbitration pending the resolution of the non-arbitrable SEA allegations. The district court denied the motion, and the Court of Appeals affirmed.
Question Before The Court: Whether, when a complaint raises both federal and state claims, a federal district court may deny a motion to compel arbitration of the state law claims despite the parties' agreement to arbitrate their disputes; and whether district courts should decide arbitrable pendant claims when a non-arbitrable federal claim is before them due to the possible collateral estoppel effect that may arise in a subsequent federal proceeding were an arbitration of the pendant claims to occur.
The Opinion: In deciding this case, the Court resolved a circuit split on the issue of how to apply the process of compelling arbitration described in Sections 3 and 4 of the Federal Arbitration Act (FAA). Prior to this case, when faced with this question, some circuits applied the doctrine of intertwining, which provided that where "arbitrable and non-arbitrable claims arise out of the same transaction, and are sufficiently intertwined factually and legally, the District [court] may deny arbitration." Other circuits held that "the FAA divests the District courts of any discretion regarding arbitration in cases containing both arbitrable and non-arbitrable claims, and instead requires that the court compel arbitration of arbitrable claims when asked to do so."
The Supreme Court in this case chose the latter interpretation when it held that "even where the result would be the possible inefficient maintenance of separate proceedings in different forums . . . [b]y its terms, the [FAA] leaves no place for the exercise of discretion by a District court, but instead mandates that District courts shall direct the parties to proceed to arbitrate on issues as to which an arbitration agreement has been signed." The Court reiterated "the preeminent concern of Congress in passing the Act was to enforce private agreements unto which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate, even if the result is piecemeal litigation, at least absent a countervailing policy manifested in another federal statute. By compelling arbitration of state law claims, a district court successfully protects the contracts of the parties and their rights under the FAA."
Prior to this case, the Supreme Court had never ruled that state law claims were arbitrable under the FAA. With this decision, federal district courts have no discretion to refuse to compel arbitration of state statutory claims if they are deemed to fall within the scope of actions covered within a broadly-written arbitration clause, even if it is presented in a consumer contract of adhesion between an individual and large corporation. By forcing arbitration "on issues as to which an arbitration agreement has been signed," the Court opened the door for all types of statutory claims to be deemed de facto arbitrable – a move they fully committed to in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), a case they heard oral arguments for just two weeks after issuing the opinion in this case.
To support its new position that parties can be compelled to arbitrate nearly all disputes, regardless of whether the claims are contractual or statutory in nature, the Court promulgates the "effective vindication doctrine."
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985)
Relevant Facts: An auto dealership sued Mitsubishi Motors under the Sherman Act, a federal anti-trust law. Mitsubishi moved to compel arbitration under an arbitration clause in the contract. Neither party disputed that the arbitration agreement was valid, but the question of arbitrability arose because the contract also contained a choice-of-law clause which provided that the arbitration would occur in Japan. The dealership argued, among other things, that because the Sherman Act is designed to protect businesses like theirs, the federal anti-trust act required a court, not an arbitrator, to enforce it and, as such, the Sherman Act claims were non-arbitrable.
Question Before The Court: Whether claims alleging violations of federal statutes are "arbitrable" under the Federal Arbitration Act.
The Opinion: In a monumental decision, the Court held for the first time that federal statutory claims may be compelled into arbitration, despite the fact that arbitrators hold only the power to enforce contracts, not the law at large. The Court declared, "The 'liberal federal policy favoring arbitration agreements' manifested by [the FAA] is at bottom a policy guaranteeing the enforcement of private contractual arrangements: the Act simply creates a body of federal substantive law establishing and regulating a duty to honor an agreement to arbitrate. . . . There is no reason to depart from these guidelines where a party bound by an arbitration agreement raises claims founded on statutory claims."
The Court continued, "By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits their resolution in an arbitral, rather than a judicial forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration." Indeed, the Court determined that even "the potential complexity" of the antitrust claim at issue "should not suffice to ward off arbitration." Casting arbitration clauses as "a specialized kind of forum-selection clause that posits not only the sitis of suit but also the procedure to be used in resolving the dispute," the Court showed little concern for the potential obstacles to civil law enforcement such a restricted forum might present. "The Bremen, [inter alia] established a strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions. . . that presumption is reinforced by the emphatic federal policy in favor of arbitral dispute resolution."
Ultimately, the Court established that determining the arbitrability of a federal statutory claim only requires a two-step inquiry: first, ascertain whether the parties' agreement to arbitrate reached the statutory issue; then, upon finding it did, consider whether legal constraints external to the parties' agreement foreclosed arbitration of those claims. Citing The Bremen, the Court allowed that "[a] party resisting arbitration may attack directly the validity of the agreement to arbitrate. Moreover, the party may attempt to make a showing that would warrant setting aside the forum-selection clause – that the agreement was affected by fraud, undue influence, or overweening bargaining power, that enforcement would be unreasonable and unjust, or that proceedings in the contractual forum will be so gravely difficult and inconvenient that the resisting party will for all practical purposes be deprived of his day in court. But, absent such a showing . . . there is no basis for assuming the forum inadequate or its selection unfair. . . And so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function."
With this decision, all statutory claims – federal and state – are now presumed arbitrable, with a high bar established for challenging arbitration of any statutory claims. Practically speaking, once this decision came down, big, powerful companies started drafting contracts of adhesion that included extremely broad language requiring "all statutory claims" against them to be resolved solely in binding arbitration – a move that essentially allows them to circumnavigate the American judiciary with the stroke of a pen.
Hollowing out its precedent from 1953, the Court reaffirms its broadest interpretations of the FAA.
Shearson/American Express Inc. v. McMahon, 482 U.S. 220 (1987)
Relevant Facts: In order to open retirement accounts with a brokerage firm, a couple signed preprinted customer agreements that contained arbitration clauses among the fine print. The customers subsequently filed RICO, securities fraud, and federal anti-trust claims in federal district court against the firm. The company moved to compel arbitration and succeeded in all but the RICO claims. Relying on the Supreme Court's precedent in Wilko, the appeals court ruled that in addition to the RICO claim, the fraud claims based on the Securities Act were also non-arbitrable.
Question Before The Court: Whether arbitration clauses in consumer contracts of adhesion are enforceable when the underlying claim is based on a federal statute, and what level of burden must be met by the party challenging the arbitrability of the federal statutory claim.
The Opinion: The Court found that RICO and anti-trust claims could be forced into arbitration, regardless of the fact that the arbitration clause was presented in a pre-printed form by the party with superior bargaining power. In so doing, the Court hollowed out its Wilko decision. The Wilko court, in finding claims under the Securities and Exchange Act were non-arbitrable, expressed concerns about the ability for appropriate factfinding in such complex cases, or in those requiring "subjective findings on the purpose and knowledge of the alleged violator." Moreover, the Wilko court acknowledged that an arbitrator is tasked with enforcing the terms of a contract, not enforcing the law and that arbitrators must make legal determinations "without judicial instruction of the law." The Wilko Court expressed reservations about the risk of harm that could arise due to the fact that arbitrators could make grave errors in applying the law, but their decisions "are not subject, in the federal courts, to judicial review." In a stunning display of hubris, the Shearson Court swatted down those concerns by citing its own extremely recent rulings in Mitsubishi Motors, Dean Witter Reynolds, and Moses Cone, providing, "It is difficult to reconcile Wilko's mistrust of the arbitral process with this Court's subsequent decisions involving the Arbitration Act. . . . Most of the reasons given in Wilko have been rejected by the Court as a basis for holding claims to be non-arbitrable."
The Court went on to provide, "Th[e] duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights. . . . The [FAA], standing alone, therefore mandates enforcement of agreements to arbitrate statutory claims. Like any statutory directive, the [FAA's] mandate may be overridden by contrary congressional command. The burden is on the party opposing arbitration, however, to show that Congress intended to preclude waiver of judicial remedies for the statutory rights at issue. If Congress did intend to limit or prohibit waiver of a judicial forum for a particular claim, such an intent will be deducible from the statute's text or legislative history, or from inherent conflict between arbitration and the statute's underlying purposes."
Of course, when it comes to statutes that were passed prior to the 1980's, it is highly unlikely that Congress would have documented their thoughts on arbitration in the legislative record because the very notion that substantive statutory rights enacted by the legislature to protect consumers and employees could be shuffled out of a judicial forum by some corporate fine print would likely have been unimaginable to them. Still, the Court's decision here requires people seeking to enforce their statutory rights in a public court to provide non-existent evidence of the then-unthinkable – a requirement that has undoubtedly stymied the enforcement of civil rights, consumer, and workplace protections.
The Court narrows the inquiry as to whether a matter is arbitrable to the sole question of whether there is "clear and unmistakable" evidence that the parties "agreed" to submit to arbitration.
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995)
Relevant Facts: A married couple signed a "workout" agreement on behalf of their business to settle some pending debts. The agreement contained an arbitration provision. When the debt continued to go unpaid, the creditor filed a claim in arbitration against the business and the married couple as individuals. The couple objected to arbitration, claiming that while the business agreed to arbitrate, they never agreed to it as individuals. The arbitrators deemed themselves able to rule on the merits, and did so in favor of the creditor. The district court upheld the arbitration award, but the appellate court reversed, finding that the question of arbitrability was for a court to decide.
Question Before The Court: Who decides whether a claim is arbitrable – the court or an arbitrator?
The Opinion: The Court held that to determine who decides the question of arbitrability, a court must look to the contract and determine whether the parties addressed the matter directly. If the contract expressly provides for an arbitrator to decide, "then the court's standard for reviewing the arbitrator's decision about that matter should not differ from the standard courts apply when they review any other matter that parties have agreed to arbitrate. That is to say, the court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances. If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently."
According to the Court, "arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration. When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally [ ] should apply ordinary state-law principles that govern the formation of contracts. This Court, however, has added an important qualification, applicable when courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea[r] and unmistakabl[e]' evidence that they did so."
A plurality holds that the question of whether class or collective claims may proceed in arbitration can be determined by an arbitrator.
Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003)
Relevant Facts: Multiple consumers separately received loans from Green Tree to buy mobile homes. The loan contracts each included a choice of law provision and an arbitration clause. The consumers sued, independently of each other, and Green Tree moved to compel arbitration in each action. The plaintiffs then came together and sought class status. The court granted the class certification and also ordered arbitration. The class plaintiffs won over $10M in arbitration. The defendant appealed, claiming class arbitration was legally impermissible. The state supreme court ruled for the class plaintiffs, holding "that the contracts were silent in respect to arbitration, that they consequently authorized class arbitration, and that arbitration had properly taken that form."
Question Before The Court: Whether the question of an arbitration clause can be enforced collectively should be determined by a judge or an arbitrator.
The Opinion: Under the facts, a plurality concluded that an arbitrator must determine whether a contract forbids class arbitration. To the Court, the relevant question was what kind of arbitral proceedings the parties agreed to – individual or class? In the Court's view, the answer is to be determined as a matter of contract interpretation on a case by case basis, something the Court reasoned arbitrators are well situated to resolve. The Court held that because it was not a question of whether arbitration would occur, but what form of arbitration would occur—individual or class—the arbitrator could decide.
The Court further provided, "In certain limited cases, courts assume that the parties intended courts, not arbitrators, to decide a particular arbitration-related matter. These limited instances typically involve . . . certain gateway matters, such as whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy."
It is worth noting that the Justices, in speaking about the different types of arbitral proceedings, never questioned the permissibility of class proceedings in arbitration. On the contrary, this opinion reads as though it was a foregone conclusion that class arbitrations are fine so long as the parties agreed to it. This assumption deteriorates in the next few cases, as the Court begins to redefine the very nature of arbitration. In hindsight, you can see what this case truly set the stage for the enforceability of class action bans in forced arbitration clauses. It also set up the Court's holding in Rent-A-Center, West v. Jackson, 561 U.S. 63 (2010), which established broad acceptance of delegation provisions in forced arbitration clauses.
The Court reaffirms that a challenge to the validity of the contract as a whole, but that fails to specifically challenge the arbitration clause, must be ordered into arbitration.
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006)
Relevant Facts: Victims of a predatory "payday" lending trap sued the predatory lender, a check cashing company. The documents they signed as part of the predatory loan included a forced arbitration clause. The plaintiffs then filed a class action, alleging usurious interest rates, among other things, which under the law made the contract illegal on its face. The check cashing company invoked the arbitration provision.
Question Before The Court: Whether a court or an arbitrator should consider the claim that a contract containing an arbitration provision is void for illegality.
The Opinion: The Court used precedent to reach its holding: "First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts. The parties have not requested, and we do not undertake, reconsideration of those holdings. Applying them to this case, we conclude that because respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court."
"It is true," the Court continued, "that the Prima Paint rule permits a court to enforce an arbitration agreement in a contract that the arbitrator later finds to be void. But it is equally true that [the consumers'] approach permits a court to deny effect to an arbitration provision in a contract that the court later finds to be perfectly enforceable. Prima Paint resolved this conundrum—and resolved it in favor of the separate enforceability of arbitration provisions. We reaffirm today that, regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator."
Revisiting its 2003 opinion, the Court holds that class arbitration is not permissible under an arbitration clause that is silent on the issue.
Stolt-Nielson S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010)
Relevant Facts: Petitioner shipping company entered into a contract with the respondent company, AnimalFeeds, that contained an arbitration clause. Later, AnimalFeeds brought a class action antitrust suit alleging price fixing. With no dispute over whether the claims would be resolved in arbitration, the only question was whether bringing the case as a class was permissible under the contract. Acknowledging that the contract was silent on the issue, the parties agreed to submit the question of whether the arbitration clause allowed for class arbitration to an arbitrator, and selected an arbitration panel. The panel determined that the agreement allowed for class arbitration. However, the district court vacated the award, claiming the arbitrators' award was made in "manifest disregard" of the law. The appeals court reversed.
Question Before The Court: Whether class arbitration proceedings are permissible under an arbitration agreement that is silent on the matter.
The Opinion: The Court returned to its ruling in Bazzle in order to limit its effect on the ability of arbitrators to permit class arbitration. Noting that only a plurality, not a majority, asserted the position allowing an arbitrator, not a court, to decide whether a contract permits class arbitration, the Court explained, "Bazzle did not establish the rule to be applied in deciding whether class arbitration is permitted."
The Court clarified that, because arbitration is a product of agreement by the parties arising out of a written contract, it is impermissible to require one party to submit to class arbitration if it didn't agree to do so in the contract: "In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. . . But the relative benefits of class action arbitration are much less assured, giving reason to doubt the parties' mutual consent to resolve disputes through class-wide arbitration." The Court concluded, "We think that the differences between bilateral and class-action arbitration are too great for arbitrators to presume, consistent with their limited powers under the FAA, that the parties' mere silence on the issue of class-action arbitration constitutes consent to resolve their disputes in class proceedings."
This holding made it substantially more difficult for people bound by forced arbitration clauses to hold companies accountable as it effectively siloes each prospective claimant unless their contract expressly provides that class arbitration is permissible. Moreover, since most forced arbitration clauses actually foreclose class actions in a judicial forum, if they speak to the issue at all, this leaves many plaintiffs unable to access class proceedings in any forum. In her dissent, Justice Ginsberg addressed this injustice, averring, "If the Court is right that arbitrators ordinarily are not equipped to manage class proceedings . . , then the claimant should retain the right to proceed in that format in court."
As with arbitration clauses generally, the Court requires parties to challenge delegation provisions with specificity in order to render them unenforceable.
Rent-A-Center, West, Inc., v. Jackson, 561 U.S. 63 (2010)
Relevant Facts: After a retail salesman filed an employment discrimination claim against his former employer, the company moved to compel arbitration under a forced arbitration clause upon which the worker's employment had been conditioned. The employee specifically challenged the forced arbitration clause on the grounds of unconscionability, but the forced arbitration clause contained a delegation provision which provided that questions of the clause's enforceability would be decided by an arbitrator. The district court granted the motion to compel and, because of the delegation provision, ordered the unconscionability question into arbitration. The appeals court reversed in part, holding that when a challenger asserts he cannot meaningfully assent to the agreement, the threshold question of unconscionability is for the court to decide.
Question Before The Court: Whether an arbitrator or a judge shall determine the enforceability of a forced arbitration clause when the agreement includes a delegation provision.
The Opinion: The Court cited its severability rule from Prima Paint in holding that "the delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement. We have recognized that parties can agree to arbitrate 'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. . . . . [Delegation provisions are] simply an additional, antecedent arbitration agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does any other. . . Application of the severability rule does not depend on the substance of the remainder of the contract. Section 2 operates on the specific 'written provision' to 'settle by arbitration a controversy' that the party seeks to enforce. Accordingly, unless [a party] challenged the delegation provision specifically, we must treat it as valid . . . and must enforce it,. . . leaving any challenge to the validity of the Agreement as a whole to the Arbitrator."
The primary effect of this case was summarized in Justice Stevens' dissent: "A claim that an entire arbitration agreement is invalid will not go to the court unless a party challenges the particular sentences that delegate such claims to the arbitrator, on some contract ground that is unique and particular to the sentences." In so deciding, the Court gave effect to contracts when the validity of those very contracts is in question. Justice Stevens addressed this problem, saying, inter alia, "I do not think an agreement to arbitrate can ever manifest a clear and unmistakable intent to arbitrate its own validity."
Arguably, one could go much further in questioning why the FAA is applied to the delegation provision at all. The FAA only applies to "written provision[s] . . . evidencing a transaction involving commerce." While an arbitration clause may be a part of, but severed from, an underlying contract in interstate commerce—the means by which the FAA applies to them—the same cannot be said for a delegation provision. The contract that contains a delegation provision is the arbitration contract. In Mitsubishi Motors the Court went to great lengths to characterize arbitration contracts as "mere forum-selection clauses." Even under the broadest interpretation of the Commerce Clause, forum-selection clauses have never been interpreted as contracts in interstate commerce. Because delegation provisions are severed from arbitration agreements, which, again, are not contracts in interstate commerce in and of themselves, it's questionable that the FAA should apply to matters of their enforceability.
The Court holds that in cases where an arbitration clause contains a delegation provision, courts must rubberstamp arbitration proceedings even where arguments for arbitrability are "wholly groundless."
Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S._(2019)(slip opinion)
Relevant Facts: After a distributor's deal with a manufacturer went bad, the distributor, Archer & White, filed an antitrust suit seeking injunctive relief. Henry Schein, the manufacturer's successor in interest, invoked an arbitration clause that specified that American Arbitration Association (AAA) rules would govern any applicable disputes. Archer & White objected to arbitration on the basis that the arbitration provision they agreed to expressly excluded suits seeking injunctive relief. Henry Schein argued that by incorporating the AAA rules, which provide that arbitrators may resolve questions of arbitrability, Archer & White had agreed to delegate the resolution of the dispute to an arbitrator. A magistrate agreed, and ruled the question of whether the claim of injunctive relief was arbitrable was for the arbitrator to decide.
Relying on precedent from the U.S. Court of Appeals for the Fifth Circuit, the district court reversed and held that the court could decide the question of arbitrability because the arguments for arbitration were "wholly groundless." The appellate court affirmed.
Question Before The Court: Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is "wholly groundless."
The Opinion: The Court granted certiorari in this case to resolve a circuit split around the question of whether the Federal Arbitration Act allows a "wholly groundless" exception. This exception, where recognized, permitted "the court rather than the arbitrator [to] decide the threshold arbitrability question if, under the contract, the argument for arbitration is wholly groundless." Relying on its precedent in First Options and Rent-A-Center, the Court found that "the 'wholly groundless' exception is inconsistent with the text of the Act and with our precedent."
The Court reasoned, "Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator. . . . If a valid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may not decide the arbitrability issue."
In the final paragraph, the Court expressly declined to rule on the question of whether a delegation provision may be incorporated by reference, as Henry Schein had argued at the lower court levels. It remains an open question whether the Court, in the future, will agree that companies can use a reference to for-profit arbitration firm rules in an arbitration clause to implicitly impose delegation provisions.
The Court rules that it is for a court to decide whether the FAA's Section 1 "contract of employment" exemption applies, regardless of the presence of a delegation provision in an arbitration clause, and that the exemption covers all classifications of workers.
New Prime Inc. v. Oliveira, 586 U.S._(2019)(slip opinion)
Relevant Facts: A truck driver sued for wage and hour violations. The employer invoked an arbitration clause containing a delegation provision in the employment contract. The driver argued that truck drivers fall within the transportation worker exemption in Section 1 of the Federal Arbitration Act (FAA). The employer argued the driver was an independent contractor, so the exemption didn't apply.
Question Before The Court: Whether a dispute over applicability of the FAA's Section 1 "contract of employment" exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and whether the FAA's Section 1 exemption is applicable to independent contractor agreements.
The Opinion: The Court held that a court should determine whether the Section 1 exception applies, even in cases where an otherwise-valid delegation provision is present. The Court observed that "under the severability principle, [courts] treat a challenge to the validity of an arbitration agreement (or a delegation clause) separately from a challenge to the validity of the entire contract in which it appears," but "a court may only use Sections 3 and 4 [of the FAA] to enforce a delegation clause if the clause appears in a 'written provision in . . . a contract evidencing a transaction involving commerce" consistent with Section 2. And only if the contract in which the clause appears doesn't trigger Section 1's 'contract of employment' exception."
This ruling appears to be the first constraint the Court has placed on delegation provisions in arbitration clauses since it first embraced them. In doing so, the Court suggested that where the FAA Section 1 "contract of employment" exception is at issue, a court should first review the contract as a whole to determine whether the exception applies. If the court determines it does apply, then the other sections of the FAA cannot be used to compel arbitration. If the court determines the exception does not apply, then the severability doctrine established in Prima Paint, and later applied to delegation provisions in Rent-A-Center, should be applied, and the court must order arbitration as required under the terms of the arbitration clause.
Relying on legislative text and history, the Court also found that the phrase "contract of employment" in Section 1 refers to all contracts to perform work, and is not limited to parties engaged in a formal employer-employee relationship. Under this ruling, the exception applies to independent contractors, and not just to workers classified as employees.
With this clarification, one wonders if there is room to expand the type of a work considered to be "engaged in . . . interstate commerce" to include common 21st Century interstate business transactions conducted primarily through the internet. For example, businesses like Amazon and its affiliates are certainly involved in interstate commerce. Under this decision, it is possible that the workers who support those transactions may also be subject to the Section 1 exception. If this question were to arise in a future claim, under this decision, the answer would be for a court to decide.
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Peruvian Quinoa Stew with Queso Fresco
By Courtney Hill
FAST: 1 hour 10 minutes
Slow: 4½ to 5½ hours 30 minutes active
The Peruvian quinoa stew called quinua atamalada is thick and hearty and typically seasoned with aji amarillo, a yellow-orange chili widely used in Peruvian cuisine. For our version, we approximated aji amarillo's flavor by using a yellow bell pepper plus a habanero. The habanero provides only subtle heat because the pod is merely cut in half, not minced, but if you wish to minimize spiciness, remove the seeds from the chili halves. Queso fresco is a salty, milky Mexican cheese with a firm, slightly crumbly texture; its savoriness contrasts nicely with the sweetness of the vegetables and lends the stew a delicious richness. If you like, garnish with finely chopped onion tossed with fresh lime juice.
Don't undercook the onion and tomato mixture. The goal is to evaporate the moisture and create a concentrated flavor base for seasoning the stew.
Slow: 4½ to 5½ hours
tablespoons grapeseed or other neutral oil
medium yellow onion, finely chopped
On a 6-quart Instant Pot select More/High Sauté. Heat the oil until shimmering. Add the onion, garlic, tomatoes, 1½ teaspoons salt and ¼ teaspoon pepper. Cook, stirring occasionally, until the moisture evaporates and onion is softened and translucent, about 10 minutes. Add the bell pepper, chili, paprika, cumin and oregano, then cook, stirring often, until the spices begin to stick to the bottom of the pot, 1 to 2 minutes. Stir in the quinoa and 2 cups water, scraping up any browned bits; distribute the mixture in an even layer.
Thomas F.
Good flavor. It turned out more like a soup than a stew for me though.
Alan P.
Two cups of water seems like a lot to stir in at the very end. Is that the correct amount?
Lynn C.
Hi Alan -
The two cups of water gets stirred in before sealing the Instant Pot and pressure cooking. The quinoa will absorb most of that liquid.
The Milk Street Team
That's in step 1, but in step two it says to "stir in 2 cups water and re-cover without locking the lid in place, then let stand for 5 minutes." I'm guessing this was a mistake.
Yes, sorry, that 2 cups of water is to make the mixture more soupy and stew-like. The water that is added during pressure cooked is mostly absorbed by the quinoa.
Lori L.
This was so easy to make and tasted incredibly delicious. I have marked it as a favorite.


Construction Machinery in China - Market Size, Market Share .
Demand for construction machinery in China is expected to rise 6.2 percent . This study analyzes the 287 billion yuan construction machinery industry in China.
marketing, as a MNE, Volvo CE entered China, which is one member of BRICs, and . 1.1.2 The Chinese Construction Equipments Market Situation .
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A leading U.S.-based heavy equipment manufacturer had been using telemetry data for more than 10 years to support its fleet and equipment management.
This statistic represents projected sales of construction machinery and equipment in China in 2010 and 2015, sorted by product category. In 2010, some 43400.
Mar 4, 2018 . CHICAGO/NANTONG, China (Reuters) - At a facility in the eastern Chinese . However, much of the heavy equipment could find its way to . A study by Off-Highway Research found that countries along the Belt and.
This statistic represents construction equipment manufacturers' share of the Chinese construction equipment market in 2011. That year, Illinois-based .
[Fuel consumption and emission inventory of typical construction .
[Fuel consumption and emission inventory of typical construction equipments in China]. . (1)School of Environment, Tsinghua University, Beijing 100084, China. . NONROAD model developed by U. S. EPA was studied, and methods based.
Heavy Construction Equipment Market 2018 Global Analysis .
Jun 7, 2018 . The global heavy construction equipment industry growth is directly related to the . Ltd (China) and Sumitomo Heavy Industries Ltd (Japan) are some of the . Our market research studies depending on products, services,.
Keywords: Portable emission measurement system; Construction equipment; . China. These studies offered valuable real-world emission test results from.
Jun 24, 2015 . The construction-equipment boom in emerging markets enabled . In China, for example, the business experienced annual growth of more than 25 ... A recent BCG study on mergers and acquisitions revealed that the vast.
Aug 23, 2010 . It's no wonder then that China is becoming the largest market in the world for construction equipment. As in autos and most other industries, the.
Construction Equipment Market Size Trends | Industry Report 2018 .
The global construction equipment market size was estimated at USD 76.87 . Countries such as U.S., China, and India among others have a huge . For the purpose of this study, Grand View Research has segmented the global construction.
The manufacture and repair of heavy equipment and machinery, such as large military vehicles, earthmovers and other construction machinery, is ideally suited.
Dec 21, 2013 . UNTIL now it has been widely assumed that construction equipment made by . and even equipment made in China by the leading foreign firms, was . These assumptions have been crushed by a new study from CLSA,.
Market Study in China: Sany looks to reduce dependence on .
Oct 24, 2013 . Sany Heavy Industry, the largest construction equipment manufacturer in China, has dominated the country's booming market in recent years.
Earthmoving and Construction Equipment Market Growth . For example, excavator sales in China grew by about four times between 1999 (6,800 ... population could reach 600 million by 2030–2031, according to several global studies.
China Construction Equipment Market | Growth, Trends and .
A case study is made on 14 wheel loaders with different makes and capacities with . pollutant emissions from diesel-burned construction equipment are also of increasing concern for ... Polytechnic University, Hong Kong SAR, P.R. China.
Demand for Construction Machinery to Advance Globally .
According to a new study of world construction equipment demand by industry . demand generated between 2014 and 2019 will be attributable to China.
The study also analyzes the structure of the global construction machinery industry . China alone is expected to account for two-fifths of all product sales gains.
Real-time emissions from construction equipment compared with .
Jan 21, 2015 . Implications: Construction equipment is an important source of air pollutant emissions. . Several studies have been conducted in order to quantify and .. to measure real-time emissions from construction equipment in China.
Mar 21, 2017 . A 2015 study in the United States revealed that as many as around 70% of government's heavy construction equipment remains unused. In fact.


G-50 Targa Please wait a few moments while our high-resolution photos load.
Porsche experts agree:, the 1987-'89 Carrera is the best 911 ever built. Why? It's simple, really. It is the last 911 to feature a body style now considered "classic" and the first to incorporate technological advancements such as the vaunted GETRAG G-50 transmission.
30 years after it was manufactured in Zuffenhausen - just before the advent of robotics changed the art of building automobiles forever - the 3.2-liter Carrera has become an eminently collectible Porsche, while still being very usable as a fun and fast driver's car.
These cars are so well engineered and so bullet-proof, that many have logged upward of 200,000 miles and are still going strong. Buy one that has been conscientiously maintained (such as this one), and you will enjoy driving it for another decade or longer without having to anticipate major repair bills.
The 1987 Porsche 911 Carrera 3.2 Targa presented here, VIN *WP0EB0913HS160644*, has been a California car from new that has enjoyed enthusiast ownership throughout its life. Sold new in Santa Monica, the car was subsequently owned by a medical doctor from Redondo Beach, lived in posh Newport Beach, and finally in Santa Barbara. Mainly driven on the freeway in a relaxed manner, it logged an average of just 8,000 miles annually.
A folder containing recent maintenance receipts totaling more than $24K accompanies this Porsche. It has always been serviced as needed. Beyond consumables like tires, clutch, and shocks, it received a fully refurbished engine in May of 2012, less than 10,000 miles ago, to the tune of $16,875.00.
Let's now inspect this fabulous Carrera in more detail, starting up front, with the trunk.
Dressed in original gray felt, we're pleased to find the original and complete Porsche tool kit.
Date-coded, inflatable spare has never been used; the vulnerable front suspension pan is absolutely flawless with no sign of corrosion or repair anywhere.
Undercarriage presents itself in unmolested, perfectly rust-free condition. There are no fluid leaks to report, nor any signs of prior damage of any sort.
The car is 100% rust and accident free; it has never been apart. Panel fit and shut lines are perfect throughout.
The removable Targa top itself is in prime condition, with undamaged headliner and supple vinyl covering.
Carrera's glossy, black paint presents very well, indeed, without any bubbles, scratches, dings, or dents, just a few small, unavoidable signs of use indicating this car's primary purpose as a fun driver.
A special treat are the polished Fuchs wheels, 7x16" up front and 8x16" out back, shod with quality Yokohama 205/55-16 and 225/50-16 tires.
The iconic 911 cockpit features five large, circular, white-on-black dials with bright orange pointers, a timeless design. You can't improve upon perfection! Vulnerable dash top is in beautifully preserved condition, without a single hairline split.
Porsche power seats are covered in the original, aromatic, black, still soft leather. Those hides are beautifully preserved, showing just the right amount of creasing to confirm they're genuine.
"Occasional rear seats" are in marvelous condition.
How about a quick peek under the deck lid before we take off?
The indestructible 3.2-Liter engine featuring BOSCH MOTRONIC runs excellent, delivering 217 strong Teutonic horses at 5,900rpm. With less than 10K miles on the clock since the aforementioned $16,875.00 were plunked down on the counter at Santa Barbara's Autohaus Schneider, it starts, sounds, and runs like new, with excellent leakdown numbers to boot.
Monday, July 24th, turned out to be just another perfect day here in our California paradise. Blue skies and mild temperatures provided the perfect opportunity to put the folded Targa top in the trunk and let the sunshine in!
Piloting such a well-sorted Carrera is a pure delight. The car starts, runs, drives, shifts, corners, and stops perfectly. The desirable GETRAG G-50 5-speed transmission with its BORG WARNER synchromesh system certainly can handle the Carrera motor's torque; the hydraulic clutch ensures ease of operation.
Naturally, an all-black Porsche like this one is a prime attention-getter, garnering excited comments wherever you take it. Be it as a sporting driver or a cherished collectible, this 911 provides unequaled driving enjoyment, with built-in appreciation potential.
If you've been looking into ownership of one of these fabulous Carreras, here's a worthy candidate for your consideration. Featuring the coveted G-50 transmission, a desirable factory color combination, fabulous leather seats, an unblemished provenance, and a fresh engine, this fine SoCal survivor might be The One.
You are most welcome and encouraged to view this fine automobile in Ventura, by appointment, during the auction, or have someone inspect it for you. Please, perform your due diligence before you bid.
Please, note that this car is currently advertised on our Web site and on display in our Showroom. We reserve the right to accept a satisfactory offer and close this auction at any time.
By bidding in this auction, you declare that you have read and accept the Terms of this Sale as outlined below.
If you have any questions, please ask them before you bid. After the auction has ended, the sale is final.
Please, only bid on this car if you are serious about owning it and have the necessary funds readily available!
We require a $1,000 deposit to be paid via PayPal within 24 hours of the end of the auction and the balance to be paid via bank wire transfer (or in cash) within 5 business days, unless other arrangements have been agreed upon during the auction.
The car comes with a clear California Certificate of Title. It is sold "as is, where is" with no warranty stated or implied. License plates shown for photographic purposes only.
You fully understand that you are not bidding on an "option to buy" this vehicle. You bid to own! There are no contingencies.
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text:
Copperas Cove city council to discuss chamber funding, rezoning, HOTDA agreement, barbecue grills
Mon, 2022-10-17 16:30 david_morris
The Copperas Cove city council is holding a workshop and meeting on Tuesday, Oct. 18, with the workshop starting at 5 p.m. and the meeting starting at 6 p.m.
The meeting will take place at the council chambers located at 508 S. 2nd St. and will be live streamed on the city's YouTube channel and on local Spectrum Channel 10.
On Tuesday, the council will hear a request from the Copperas Cove Chamber of Commerce, for $32,210 in hotel occupancy tax (HOT) funding which it didn't request for 2020-2021.
The city has reimbursed the chamber for the first three quarters of fiscal year 2021, for October 2020 –March 2021.
However, the chamber didn't request HOT fund reimbursement for July-September 2021 during the required 60-day time period, according to the city's Hotel Occupancy Tax Policy. That time period expired on Nov. 29, 2021, according to the agenda item—hence the leftover $32,210.
The chamber is asking for these monies to go to "support the operations of the Visitors Bureau during fiscal year 2022-2023", the current year.
According to the chamber, its board of directors was "not aware" that its president/CEO at the time, Silvia Spires, hadn't submitted a reimbursement request to the city.
In fact, the Chamber's last quarterly report and reimbursement request took place one year ago, in October 2021, when Spires made her first and only presentation to the council, for April-June 2021, for expenses of $17,611, which the council approved.
The decision for that funding allocation would be up to the city council.
The chamber has another HOT fund request on the agenda, for expenses reimbursement for October-December 2021, the first quarter of fiscal year 2021-2022.
The chamber also had a 60-day deadline to submit for this reimbursement, according to HOT policy, by the end of February 2022. This payment request is $23,521.93.
In July 2022, the city council earmarked a total of $93,121 in HOT funds to the chamber for its visitor bureau operations for 2022-2023, with a total of $37,689 toward Krist Kindl Markt 2022 and Rabbit Fest 2023.
The rezoning of nearly 29 acres just south of U.S. 190 and along F.M. 3046, from Low Density Residential) to MD (Medium Density Residential) and Public (Public & Institutional) is also on the agenda for Tuesday's meeting. The 29 acres is to be developed into duplex apartments.
The city's agreement with the Heart of Texas Defense Alliance is also on the agenda, with the city paying $17,000 annually to the organization.
The city's agreement with Comal Transportation, LLC, for transporting solid waste and recyclables is on the agenda for Tuesday. This agreement has a proposed amendment, that a minimum of two drivers will be available for transportation, due to the increased volume of solid waste the city has seen over the past five years.
The council will also be discussing allocation of the American Rescue Plan Act Coronavirus Local Fiscal Recovery Funds (CLFRF) from the Texas Division of Emergency Management (TDEM), including eligible public safety uses.
The city is also presenting a resolution to the council to deny Oncor Electric Delivery Company LLC's application to increase rates.
City Manager Ryan Haverlah is also scheduled to report to the council on the Extraterritorial Jurisdiction (ETJ) agreement with Coryell County, U.S. Business 190 project, the F.M. 116/SH-9 overpass, Veterans Avenue sidewalk, Constitution Drive reconstruction, Rattlesnake Mountain water elevated storage tank, and residential/commercial developments update.
During the workshop which begins at 5 p.m., Bobby Lewis, the city's Developmental Services Director, will be giving an update on the zoning ordinance update project, and there will be discussion on the storage of the Military Affairs Committee's barbecue drills at the Civic Center.
Copperas Cove City council to propose tax rate, vote on city manager agreement, look at utility rate increases, discuss general and HOT fund requests
Copperas Council hears from citizens on the status of the Five Hills Scholarship Pageant Program


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« Life as a Smug Canadian: Winter Olympics Edition
Should I scrub my life? Or, Who was that guy who wrote those posts? »
October 31, 2016 by Regan Wolfrom
Robert-Falcon Ouellette is in the process of introducing the Indian Residential School Genocide and Reconciliation Memorial Day Act in the House of Commons. Not everyone likes this idea of having a day each year to "dredge up" or "dwell" on something that's, you know, like, over and done with.
I'd guess that most people feel that way, actually.
And there is a wide variety of ways for naysayers to tell us why the Residential Schools Outrage doesn't need to keep being brought up:
"It was a different time, and I wasn't around for it, and we need to move on, already, jeez…"
"My family is from India/Russia/Paraguay/Equestria so I don't see why it has anything to do with us or any other New Canadians"
"It was the churches who did it, not the government. Blame the churchies for it. (and Praise Sagan/Hitchens/The Flying Spaghetti Monster, while we're at it)"
"Those aboriginals already get free money all the friggin time, man, so it's not like they need some new form of handout and/or pat on the back"
But one of the newer ones I've seen, which I think is a much more clever way for someone to delude themselves, is this one:
"This was years ago, it's in the past, and the First Peoples have not only survived, but thrived. And that's what I choose to celebrate."
That's very similar to the way the German people hold their annual Siewillkommenfürdenholocaustjudenfurfünfzigjahreseinerunterstützungfürdenisrael-FEST, or, as we know it, the "You're Welcome for the Holocaust, Jews, Since It Gave You Fifty-ish Years of Support For the State of Israel" festival. That, of course, is on January 27th of every year, when parties break out in the night clubs of Berlin, Munich, and Buchenwald. In addition to the Rabbi-shaped piñatas — coloured pink so the gays don't feel left out — there are ceremonial circumcisions of bratwurst and cocktails made with passover herbs and gin, which is considered by Germans to be the "jewiest" of liquors. This is all done to the beats of gypsy music, which is meant to remind the Roma people that despite continuing worldwide persecution before, during, and after the Nazi death camps, that they should be happy to be mentioned at all. Which makes sense: it's not like people even bother talking about the RMS Lusitania, when the RMS Titanic wins out by sheer number of dead passengers and heartbreaking made-up love stories.
So here I am, comparing a 60-80% successful (my best out-of-the-rump guess) attempt at cultural genocide with a 30-50% successful gun-and-gas genocide, and mentioning those naughty Nazis, no less. So are the two events related at all?
Well, the events that took place are not the same. At all. And the motivations were not the same, either. I do believe that the misinformed and paternalistic authorities in Canada were (for the most part) thinking they were doing the right thing for white people and for the "indians", though I don't doubt for a moment that they all knew it was a little more right for the whites. It's simple: they didn't want to kill anyone, but they wanted the "race" of First Peoples to die out. So what could they do? They could try and make the indian children as white (and Christian) as possible, so that in a hundred years, the only trace of them would be fewer freckles and blonde mops in the Canadian populace, like in the United States today where practically every white person is 3/57 Cherokee (an exact genetic measurement, I'm guessing).
So best case for the First Peoples of Canada, in the opinion of Her Majesty's (Queen Victoria, that other Her) Government? That their children and grandchildren will survive with no connection to the culture of their ancestors. But as we've seen, even that unethical best case didn't happen, because there is a great deal of collateral damage that comes from taking children away from their families and leaving them orphaned and isolated from their culture for a decade or two, and then tossing them into a society that still views them as the other (and the lesser). Of course, not all of these children survived, since over three Titanic's worth of them (6,000 that we have an idea of) didn't actually live long enough to find out what happens after the demoralization and abuses of the residential school.
What happens after? You could try to describe it as a sort of societal breakdown, where the children of the schools feel alien to their families and communities, where a lack of appropriate care and attention to pyschosocial development (Erik Erikson-style) has led to a crisis of identity and its resulting issues of abuse, both to others and to oneself. Or you could call it cultural genocide, since that's what a number of scholars believe.
And the mostly well-meaning but very wrong officials who came up with the plan also bear responsibility for the buttload of "bad apples" who spoiled the whole orchard, not that the orchard wasn't already covered in rotting batshit. It's not hard at all to find the testimony of former students who were beaten for speaking their language, beaten for a whole pile of arbitrary reasons (or for no reason at all), or sexually abused because there was no one around who could or would protect them. This happened to non-aboriginal children as well, such as orphans at Mount Cashel Orphanage in Newfoundland, or the man I knew personally who remembered quite well how the nuns in Alberta would use beatings as a primary form of punishment on him. I'm not sure if it's better or worse to know that that unlike many of the children at those orphanages across Canada, the tens of thousands of children at residential schools had parents at home, but those parents could still do nothing to help them.
But that was in the past, friends. Like we're talking twenty years ago, which is similar to the cut-off for declaring your rusted-out gas-guzzling beater a classic automobile. That guy I knew has been dead for fifteen years, and most of the last survivors are getting older, too. It's not like we still have any issues affecting our First Peoples, no substandard water supply or housing, no serious governance crisis involving cronyism and misallocation of funds, no constant stream of racism against aboriginals that every resident of Winnipeg has seen in front of their very eyes.
Personal experience time: I would say that a full 25-50% of the people I know in my life, whether they are friends, coworkers, or relatives, have personally demonstrated to me that they view aboriginals as "less-than". That's not like that one uncle who talks about nuking the rag-heads in the middle east, or that one mentally-ill white man I found wandering down Market Street in San Francisco screaming about "the damn niggers". It's up to half of the people I know who've made jokes, offhand comments, or full-on declarations to me that it's the aboriginals who are the problem, and that they need less paydays and coddling, and more tough love from their big brothers. So not really that different than the thought process from 170 years ago that led to these schools in the first place.
And I'm not innocent. Just so you know, when it comes to every bad thing, I rarely am. Nowadays I still find myself skirting around the racist comments, only confronting when the mood strikes me. And in the past, I'd made a few of those jokes myself, because I like jokes, and I'd never given much thought to where those jokes come from or what they're meant to do. They were never meant as a good-natured jab between friends, or an edgy social critique on whatever. They were meant to make us think of other people as being worth less.
That's not really funny, is it? I mean, even supporters of the Conservative Party of Canada are human beings worthy of respect. Yes. Even them.
So it's not the event that is comparable to the Holocaust. But what we need to contrast is the response, the difference between German schoolchildren having been taught the horrors of what their country did for the past seventy years, while in Canada our national shame is glazed-over like a box of Timbits. How it would be considered an extremist Neo-Nazi position to praise the Holocaust in Nuremburg, while residential school victim-shaming in Winnipeg is considered a form of intellectual debate.
Wait, what? Who is shaming the victims?
Sorry, pal. But the thing about our friendly Canadian attempt at cultural genocide is that a large majority (IF NOT ALL) of our one and a half million First Peoples are still dealing with the repercussions of an act perpetrated by OUR GOVERNMENT. That makes Canada the victimizer, and, yes, our First Peoples the victims. That doesn't mean they are helpless, or pitiful, or broken down husks of humanity. But it means that when someone calls into question the notion that First Peoples' communities aren't still affected by the residential schools system, that person is whitewashing the crime, and through that no-pun-intended whitewashing, saying that it's unjust and unfair for the people OUR GOVERNMENT WRONGED to expect us to even accept what happened and how those terrible acts are still affecting their lives today.
You don't get to decide how our First Peoples should feel. Or how they should respond to what happened to their families and communities and cultures. Are there serious problems within many of those families and communities? I don't think anyone is arguing otherwise. What I'm saying is that unless you're living each and every experience of those affected by residential schools, you cannot decide when this historical shame is no longer applicable. You don't get to choose when everyone "should just get over it".
So what do we need to do? We, as in all Canadians?
It's not up to me to decide what the First Peoples should do. What I do believe could help is a real nation-wide dialogue (I'd like to see a constitutional convention, actually) between all First Peoples, where representatives of all the various nations meet (not just chiefs, but also representatives of minority or underrepresented groups), where experts from outside are also invited to provide their experience and suggestions. There are people from around the world who have faced similar issues and have implemented solutions that worked. There are also people who are experts in finding consensus, and people who are experts in drafting the kind of documents and action items that are needed for progress to be achieved.
From this congress, I'd like to see a blueprint for an improved governance model for aboriginal communities, one that includes an understanding that not all communities and tribes are the same, so not all ideas work for everyone, but that also denotes those items that are necessary for all First Peoples' governments to implement going forward. This wouldn't be a list of action items for the Canadian government, or the provinces and territories, but for the local and regional First Peoples' governments. Items that they will control and that they will measure, that they will be accountable for.
And our other governments (Canada, the provinces and territories) would have no say in the decision. Because it's not up to them. You don't make treaties with other nations and then tell those nations that you don't have to live by those treaties because you don't agree with their internal decisions. As long as the First Peoples honour their side of those treaties, they have every right to create their own internal governance model. And to expect our governments to support them as needed.
And it's my job to hold my governments to account when they mess up on their commitments, and to hold my peers to account when they treat anyone else as lesser.
And it's also my job to call BULLSHIT on people who think that we should just forget and move on from the disgrace of residential schools.
Posted in Current and Upcoming Issues, Federal Issues, Manitoba Issues, Political and Community Affairs, Winnipeg Issues | 2 Comments
on November 1, 2016 at 10:59 pm | Reply Sam
The beauty of being a Canadian is that you are free to commemorate what you want . If other Canadians don't feel the same, that's their choice.
No one "needs" to do anything.
on November 2, 2016 at 9:00 am | Reply Regan Wolfrom
@Sam, please don't spoil the surprise for my next post, "The Pressing Need to Compel ALL CANADIANS to Commemorate EVERYTHING".


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'Mistresses' Premieres to ABC's Lowest Ratings in Two Years
First, cougars felt the burn. Now, Mistresses are proving to be quite unpopular on ABC. The Alyssa Milano-fronted new drama, which premiered Monday, wasn't quite the guilty pleasure it hoped to be, pulling in just 4.4 million viewers.
The ratings would be welcome on cable, but, for ABC, Mistresses — adapted from the British hit about the other women — laid a little too flat. The debut was the network's worst-rated premiere since Combat Hospital bowed in 2011. (What was Combat Hospital? Exactly.) Seems The Office and Shameless continue to be the only British import that could successfully swim overseas. (Cheerio Coupling, Life on Mars, and so, so many more.)
The ratings don't bode well for Gavin & Stacy reboot Us & Them, which airs this fall on FOX, or, frankly, ABC's other fall series about the other woman, Malin Akerman's Trophy Wife.
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