Monday, January 14, 2008
Judge Alex appears before the Supreme Court today not as a judge, but as a litigant in a fee-dispute case. We wrote on the issue here back in September when the Court granted certiorari. One of the best popular-press descriptions of the legal issue involved is in today's Wall Street Journal article by Jess Bravin. As I mentioned before, the case, Preston v. Ferrer (here's the writ petition), involves a Buckeye preemption issue. "Judge" Alex [E. Ferrer] arbitrates petty civil disputes in a taped television series. He signed an agreement containing an arbitration clause with Artist Manager Arnold Preston, but didn't make the stipulated payments. Preston filed for arbitration, but Judge Alex challenged the legality of the entire agreement under the California Talent Agencies Act. This Act, among other things, provides that disputes under the Act must be referred to the California Labor Commissioner. Judge Alex obtained an injunction in state court against the arbitration; the state court ordered that the legality of the Alex-Ferrer agreement be decided by the Labor Commissioner. An appellate court affirmed, and the California Supreme Court denied review without opinion. The issue on which the Supreme Court granted cert is whether the FAA and Buckeye require that an arbitrator determine the gateway arbitrability issue, or whether Buckeye is distinguishable because the California statute at issue in Preston vests initial jurisdiction in an administrative agency and does not involve a party seeking judicial determination of the issue.