Blog Archives
Young Lawyers: Don’t Sue the Arbitrators!
September 2, 2016
Judges enjoy absolute immunity, even if their conduct is malicious or dishonest. See Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335 (1872), and cases cited therein. The Supreme Court, following centuries of English precedent, held that judges have absolute immunity from suit as a result of their judicial acts, no matter how malicious, reasoning that judicial independence must be preserved at all costs: For it is a general principle of the highest importance to the proper administration...
September 2, 2016
Judges enjoy absolute immunity, even if their conduct is malicious or dishonest. See Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335 (1872), and cases cited therein. The Supreme Court, following centuries of English precedent, held that judges have absolute immunity from suit as a result of their judicial acts, no matter how malicious, reasoning that judicial independence must be preserved at all costs: For it is a general principle of the highest importance to the proper administration...
Was Susskind Right? 3 Keys to Understanding the Direction of Legal Tech at ILTA
September 1, 2016
Where legal tech is, should be, and may be going, as discussed by those at the vanguard. Artificial intelligence (AI) in law is arguably the hottest topic in legal tech, but balancing the hype and actual power of the technology calls for taking information with a grain of salt. Embracing a refreshing sense of humor, the ILTA session “Grading Susskind: The State of Legal 20 Years After the ‘Future of Law,’” placed spotlights on predictions made by legal tech scholar Richard Susskind,...
September 1, 2016
Where legal tech is, should be, and may be going, as discussed by those at the vanguard. Artificial intelligence (AI) in law is arguably the hottest topic in legal tech, but balancing the hype and actual power of the technology calls for taking information with a grain of salt. Embracing a refreshing sense of humor, the ILTA session “Grading Susskind: The State of Legal 20 Years After the ‘Future of Law,’” placed spotlights on predictions made by legal tech scholar Richard Susskind,...
Supreme Court of Texas Holds Company Did Not Waive Right to Arbitration
September 1, 2016
The Supreme Court of Texas has ruled that a company did not waive its right to arbitration by engaging in the litigation process with a third party. In RSL Funding, LLC v. Pippins, No. 14-0457 (Tex., July 1, 2016), a company, RSL Funding, agreed to purchase certain annuity contracts issued by MetLife from three individuals on behalf of the company or its assigns. As part of this agreement, RSL funding and the individuals signed an arbitration agreement. Despite this, neither RSL nor the individuals...
September 1, 2016
The Supreme Court of Texas has ruled that a company did not waive its right to arbitration by engaging in the litigation process with a third party. In RSL Funding, LLC v. Pippins, No. 14-0457 (Tex., July 1, 2016), a company, RSL Funding, agreed to purchase certain annuity contracts issued by MetLife from three individuals on behalf of the company or its assigns. As part of this agreement, RSL funding and the individuals signed an arbitration agreement. Despite this, neither RSL nor the individuals...
San Antonio COA Holds Payday Lender Did Not Waive Right to Arbitrate When it Filed Criminal Charges Against Customers
August 31, 2016
In a 2-1 decision, Texas’ Fourth Court of Appeals in San Antonio has ruled that a payday loan business did not waive its right to engage in arbitration when the company filed criminal complaints against its defaulting customers. In Cash Biz, LP v. Henry, No. 04-15-00469-CV (July 27, 2016), a payday lender, Cash Biz, provided short-term loans to individuals. As part of this process, loan customers provided the company with a post-dated check for the amount of the loan and any applicable service...
August 31, 2016
In a 2-1 decision, Texas’ Fourth Court of Appeals in San Antonio has ruled that a payday loan business did not waive its right to engage in arbitration when the company filed criminal complaints against its defaulting customers. In Cash Biz, LP v. Henry, No. 04-15-00469-CV (July 27, 2016), a payday lender, Cash Biz, provided short-term loans to individuals. As part of this process, loan customers provided the company with a post-dated check for the amount of the loan and any applicable service...
Chipping Away at the Enforceability of Class Waivers in Employment Claims
August 31, 2016
For years, California has been in a state of confusion over the validity of class action waivers that require plaintiffs to arbitrate their claims individually. This issue has been particularly volatile in the employment law arena, where workers and employers have taken passionately opposing positions. Adding to the constant confusion has been a long line of related split decisions in various state and federal courts, including some that have involved National Labor Relations Board (NLRB) rulings. For...
August 31, 2016
For years, California has been in a state of confusion over the validity of class action waivers that require plaintiffs to arbitrate their claims individually. This issue has been particularly volatile in the employment law arena, where workers and employers have taken passionately opposing positions. Adding to the constant confusion has been a long line of related split decisions in various state and federal courts, including some that have involved National Labor Relations Board (NLRB) rulings. For...
Fifth Circuit Orders FLSA Dispute to Arbitration Based on Delegation Clause in Employer’s Arbitration Policy
August 30, 2016
The nation’s Fifth Circuit Court of Appeals has ruled that a delegation clause stating gateway determinations regarding arbitrability must be decided by an arbitrator applied to an oil worker’s preexisting Fair Labor Standards Act (“FLSA”) claim. In Kubala. v. Supreme Production Services, Inc., No. 15-41507 (5th Cir., July 20, 2016), a Texas oil field employee, Kubala, brought a proposed FLSA case against his employer, Supreme Production Services (“SPS”). Before Kubala’s employer...
August 30, 2016
The nation’s Fifth Circuit Court of Appeals has ruled that a delegation clause stating gateway determinations regarding arbitrability must be decided by an arbitrator applied to an oil worker’s preexisting Fair Labor Standards Act (“FLSA”) claim. In Kubala. v. Supreme Production Services, Inc., No. 15-41507 (5th Cir., July 20, 2016), a Texas oil field employee, Kubala, brought a proposed FLSA case against his employer, Supreme Production Services (“SPS”). Before Kubala’s employer...
Third-Party Discovery in Arbitration: Between a Rock and a Hard Place
August 30, 2016
There is no clear path to securing discovery from third parties prior to an arbitration hearing. Indeed, courts are divided on their authority to enforce third-party subpoenas issued in the context of an arbitration proceeding. In jurisdictions where the enforceability of third-party subpoenas is limited or uncertain, parties may have to consider alternatives. Suppose that your client is engaged in an arbitration pending in Ohio. At your request, the arbitrator issues a third-party subpoena...
August 30, 2016
There is no clear path to securing discovery from third parties prior to an arbitration hearing. Indeed, courts are divided on their authority to enforce third-party subpoenas issued in the context of an arbitration proceeding. In jurisdictions where the enforceability of third-party subpoenas is limited or uncertain, parties may have to consider alternatives. Suppose that your client is engaged in an arbitration pending in Ohio. At your request, the arbitrator issues a third-party subpoena...
Fifth Circuit Again Rejects NLRB’s Position on Class Action Waivers in Arbitral Agreements
August 29, 2016
The United States Court of Appeals for the Fifth Circuit has once again rejected a National Labor Relations Board’s (“NLRB”) order stating a class action waiver included in an agreement to arbitrate violates the National Labor Relations Act (NLRA). In Citi Trends Inc. v. NLRB, No. 15-60913 (5th Cir. August 10, 2015), a former Citi Trends employee filed an unfair labor-practices charge against the company over the terms included in its mandatory arbitration agreement. An administrative law judge...
August 29, 2016
The United States Court of Appeals for the Fifth Circuit has once again rejected a National Labor Relations Board’s (“NLRB”) order stating a class action waiver included in an agreement to arbitrate violates the National Labor Relations Act (NLRA). In Citi Trends Inc. v. NLRB, No. 15-60913 (5th Cir. August 10, 2015), a former Citi Trends employee filed an unfair labor-practices charge against the company over the terms included in its mandatory arbitration agreement. An administrative law judge...
Eleventh Circuit Makes Vacatur Challenges More Difficult
August 29, 2016
So, you think you have a strong case for challenging an unfavorable arbitral award on grounds that the arbitrator was (1) partial, (2) committed misconduct, or (3) exceeded his or her powers? Ponder your decision very carefully because history has shown that overturning an arbitral award on appeal is extremely difficult given that the standards of review under the Federal Arbitration Act (FAA) and analogous statutes are extremely narrow. Under section 10(a) of the FAA, vacatur is appropriate under...
August 29, 2016
So, you think you have a strong case for challenging an unfavorable arbitral award on grounds that the arbitrator was (1) partial, (2) committed misconduct, or (3) exceeded his or her powers? Ponder your decision very carefully because history has shown that overturning an arbitral award on appeal is extremely difficult given that the standards of review under the Federal Arbitration Act (FAA) and analogous statutes are extremely narrow. Under section 10(a) of the FAA, vacatur is appropriate under...
Are Lawyers Ready for the Internet of Things?
August 28, 2016
IoT Law While this sounds wonderful or creepy, it also marks the point that lawyers must become more than tech comfortable. Product liability, personal injury, privacy, commercial, government, and other lawyers all have roles to play in the IoT story. When an Uber car hits another car, who will be responsible? Who does the personal injury lawyer file suit against? What are the standards? Was too little or too much information shared? Was there a breach of contract somewhere? What regulations were...
August 28, 2016
IoT Law While this sounds wonderful or creepy, it also marks the point that lawyers must become more than tech comfortable. Product liability, personal injury, privacy, commercial, government, and other lawyers all have roles to play in the IoT story. When an Uber car hits another car, who will be responsible? Who does the personal injury lawyer file suit against? What are the standards? Was too little or too much information shared? Was there a breach of contract somewhere? What regulations were...
