International Brotherhood of Electrical Workers Local #111 v Public Service Company of Colorado

Local #111 sued Company seeking an order to compel arbitration of certain reductions in retired workers health befits. The district court denied its motion to compel. The panel, 2-1, affirmed. It first, unanimously, held there was appellate jurisdiction over the case under the federal Arbitration act. It reviewed several stands of case law to conclude that the Act applies to collective bargaining contracts with arbitration clauses except for those involving transportation workers, that denials of motions for stay can be reviewed under section 9 of the Act when an unmistakable motion for stay and compelling arbitration is filed and the motion is denied and nothing in 29 USC 185 prevents review of those orders as they are procedural in nature. The majority held that the arbitration clause here did not apply to retirees as it uses “wages, hours and employment conditions” which Supreme Court precedent and cannons of construction limit to current employees not retirees. The dissent argued that the contract here included provisions about retirement benefits and applying the presumption of arbitrability should result in reversing here.

Derma Pen, LLC v 4Everyone Limited

Derma sued 4everyOne alleging violation of its trademark in the “Derma Pen” mark and sought a preliminary injunction. The district court ruled there was little likelihood of success on the merits and denied the motion. The panel reversed and remanded. It held that as Derma is the record owner of the mark, the agreement between the parties only granted 4EveryOne a right of first refusal and there has been no sale, it is likely that Derma will prevail on its Lanham Act claims. The case was remanded for a new balancing of the factors for issuing a preliminary injunction.

United States v Black

Black appealed his failure to register conviction arguing that his underlying offense was consensual and when whole years lived were subtracted he was only 4 years older than the victim. The panel affirmed. It adopted the reasoning of the 3rd Circuit and held the statutory language “4 years or less” than the victim unambiguously means 48 months older or less. The panel noted adopting Black’s proposed interpretation would expand the number of people criminally liable for stator rape which is not consistent with congressional intent.

Martin K. Eby Construction Company, Inc. v OneBeacon Insurance Company

Eby was sued by another company under an indemnity clause for costs incurred by the other company in defending itself from claims arising out of a methane leak. The district court granted judgment to Eby and its insurer. The panel affirmed. It held that under Texas law, which controlled, the other company was required to give fair notice that Eby would be liable for the company’s negligence or intentional acts, that this notice must be conspicuous, that the notice here was in the middle of a long document in the same small print and same color as the rest of the agreement and thus the clause was unenforceable. The insurer was also not liable as the other company was not an insured and Eby was not responsible to indemnify the other company.