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"Heimlich relief for 998 offers" by Edward R. Huguenin and Erik C. Tofft

Updated: Jul 3, 2019

Experienced California litigators know the strong public policy favoring the resolution of disputes by way of binding arbitration. This policy has not only been codified by the Legislature in Code of Civil Procedure Section 1280 et seq., but firmly underscored by a number of federal cases dealing with principles of preemption favoring enforceability of arbitration provisions. See, e.g., AT&T Mobility LLC v. Concepcion, 566 U.S. 333 (2011), Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52 (1995), Allied Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995). Such practitioners also know of the codified legislative incentive to resolve disputes short of trial (or, as the case may be, arbitration hearings) provided by California Code of Civil Procedure Section 998, et seq. They may be surprised, however, to learn that there is no clear roadmap when it comes to employing the cost-shifting mechanisms of Section 998 in the context of binding arbitration proceedings, notwithstanding Section 998’s clear application to arbitration.

That may be about to change as the California Supreme Court considers when, to whom, and in what manner a prevailing party’s request for an award of costs under Section 998 must be made in the arbitral setting. See Heimlich v. Shivji, S243029.. read more..


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