Nesbitt v FCNH, Inc.

Nesbitt field a class action suit against FCNH and several massage therapy schools alleging failure to pay students for massage services provided to customers. FCNH moved to compel arbitration which the district court denied ruling the operative clause effectively stripped Nesbitt of her federal labor law rights. The panel affirmed. It held that, under the effective vindication exception to the Federal Arbitration Act, Nesbitt was entitled to pursue her claims in federal court because the arbitrator fees and requirement that she bear her attorney fees effectively prevented Nesbitt form pursuing her claim in either court or in arbitration. The panela held the presence of an opt out provision did not change the analysis as that clause goes to arbitrabiility and the possible discretionary waiver of costs in arbitration does not provide a similar level of protection s federal labor law. It also held that the district court correctly interpreted the arbitration provision to require Nesbitt to bear her share of the costs of arbitration and was at best ambiguous on whether attorney fees would be awarded to Nesbitt and thus as a whole the provision would deter claimants from pursuing a claim.

United States v Webster

The government appealed the district court’s orders granting habeas relief and suppressing all evidence seized pursuant to warrant based on the theft of personal property buy officers who did not execute the warrant in question. The panel reversed. It held the seizure by the executing officers was not tainted by the unauthorized theft because the executing officers did not know about the theft, only seized items within the scope of the warrant, the stolen items were few in number, the overall search was not a fishing expedition and suppression here was unwarranted as the officers who stole the property have been convicted and imprisonment is the harshest deterrent available for theft by officers.

Espinoza v Arkansas Valley Adventures, LLC

Espinoza brought a wrongful death claim against Adventures alleging negligence in the death of his mother during a rafting trip. The district court granted summary judgment to Adventures based on a release signed by mother. The panel, with one judge dissenting in part, affirmed. It held Colorado law allows recreation providers to contract release of liability based on negligence and it is up to Colorado lawmakers to change the rule not a federal appeals court in a diversity case. The majority held the release adequately warned mother of the risks by incorporating preprinted warnings of dangers and the possibility of injury or death similar to those held adequate by Colorado courts. The dissent argued whether the warning was adequate is jury question as Adventure’s employee misled mother as to the kinds of rapids she would encounter.