In re: Cox Enterprises, Inc. Set-Top Cable Television Box Antirust Litigation (Alwert v cox Communications, Inc.; Feldman v Cox Communications, Inc.)

Alwert and Feldman sued cox alleging antirust violations for making subscribers use a particular television box. The district court ordered the cases to arbitration. The panel affirmed. It held the arbitration clause here covers all disputes arising between the parties and under circuit precedent that includes claims arising before the provision became effective. It distinguished the 6th Circuit case Alwert and Feldman cited because the parties there had actually been in litigation and Alwert and Feldman chose to opt out of joining the putative class action before the denial of class status was affirmed and the arbitration clauses were wailed to them. It held there was no waiver of arbitration by Cox because it demanded arbitration within three weeks of its answers being filed, made no discovery requests an moved to arbitrated days after being served with discovery requests, made no counterclaims and Alwert and Feldman failed to demonstrate how an earlier motion would have made them better off and Cox’s decision to litigate a different claim resulting in waiver of arbitration in that case does not mean Cox waived arbitration in these cases particularly as the other case was designated as a bellwether case on the antitrust issues. It finally held that the issue of whether the arbitration clause is illusory must be submitted to the arbitrator under United States Supreme Court precedent and only contracts as a whole lacking consideration can be found to be illusory. It held that Alwert’s illusory claim is not exempt under Arizona law as Arizona’s case law is hostile to arbitration and thus does not affect the outcome while Felder’s illusory claim is not exempt form arbitration under Louisiana law as the Louisiana Supreme Court has upheld arbitration clauses subject to oral modification.

Olson v Penske Logistics, LLC

Olson appealed summary judgment to Penske on his medical leave act claim. The panel affirmed holding there was no factual basis in the record to conclude Olson would have been allowed or been successful in defending against charges he lied to his supervisors and lied to a customer about the inventory he was charged to maintain or that the person who fired him was irritated by the need to go to the storage facility and resolve the issues he found there and the record instead demonstrated significant misconduct which was similar to misconduct that had always resulted in termination of employment.

United States v Wolfname

Wolfname appealed his conviction for violating 18 USC 111(a)(1). The panel reversed and remanded. It held that under circuit precedent at the time of trial, attempt or intent to injure was an element of all 111(a) crimes and this precedent has been codified in the current language of 111(a). It held the failure to include the assault element was plain error as the precedent directly address the issue of the elements of a 111(a) crime, and the error affected Wolfname’s substantial rights  and the fairness of the proceeding as he testified he did not intend to injure the arresting officer and the jury in fact acquitted him of assault and the evidence on the missing element was neither overwhelming or unconverted and thus the panel concluded a different outcome was likely if the jury had been properly instructed.