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arbitration clauses
Two Federal Circuits Find Health Insurance Claims Outside Scope of Arbitration Clauses
May 21, 2014
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and Third Circuits issued decisions holding that defendants could not compel arbitration because the plaintiffs’ claims fell outside the arbitration...
May 21, 2014
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and Third Circuits issued decisions holding that defendants could not compel arbitration because the plaintiffs’ claims fell outside the arbitration...
Using Arbitration Clauses in Class Action Settlements
April 9, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
April 9, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
California Court Rules on Mandatory Arbitration Clauses in Trusts
April 9, 2014
There are not many jurisdictions that have weighed in on the issue of whether arbitration clauses should be mandatory in trusts....
April 9, 2014
There are not many jurisdictions that have weighed in on the issue of whether arbitration clauses should be mandatory in trusts....
Using Arbitration Clauses in Class Action Settlements
April 8, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
April 8, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
Court OKs Antitrust Class Action Waivers in Arbitration Clauses
March 13, 2014
After years of ambiguity about the enforceability of contract clauses mandating arbitration and waiving class action rights in domestic antitrust cases, the U.S. Supreme Court has finally brought clarity to the situation. In June 2013 the court decided American Express v. Italian Colors Restaurant, holding that arbitration clauses and waivers of class action rights are enforceable in domestic antitrust cases. Regardless of whether one agrees with the court's conclusion, the American Express...
March 13, 2014
After years of ambiguity about the enforceability of contract clauses mandating arbitration and waiving class action rights in domestic antitrust cases, the U.S. Supreme Court has finally brought clarity to the situation. In June 2013 the court decided American Express v. Italian Colors Restaurant, holding that arbitration clauses and waivers of class action rights are enforceable in domestic antitrust cases. Regardless of whether one agrees with the court's conclusion, the American Express...
GLOBAL K: Contrasting Attitudes towards Arbitration Clauses
January 16, 2014
The recent discussion of the December 2013 decision by the Ninth Circuit in In re Wal-Mart Wage & Hour Employment Practices Litigation calls to mind the contrast in attitudes between international and domestic practice. Mention “arbitration” among international practitioners and profs, and you are likely to get a bit of a swoon from most – arbitration, properly structured, rescues us from the risks and uncertainties of unfamiliar legal systems and provides a comfort level in terms of predictability...
January 16, 2014
The recent discussion of the December 2013 decision by the Ninth Circuit in In re Wal-Mart Wage & Hour Employment Practices Litigation calls to mind the contrast in attitudes between international and domestic practice. Mention “arbitration” among international practitioners and profs, and you are likely to get a bit of a swoon from most – arbitration, properly structured, rescues us from the risks and uncertainties of unfamiliar legal systems and provides a comfort level in terms of predictability...
The Easiest Arbitration Agreement to Avoid May Be the One Between Attorney and Client
January 7, 2014
The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements. Although the First Circuit found its way around the issue, the Ninth Circuit took it squarely on, holding that such requirements, at least as set forth by Washington state law, are not preempted by the FAA. In Bezio v. Draeger, __ F.3d __, No. 13-1910, 2013 WL 6570920 (1st Cir. Dec....
January 7, 2014
The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements. Although the First Circuit found its way around the issue, the Ninth Circuit took it squarely on, holding that such requirements, at least as set forth by Washington state law, are not preempted by the FAA. In Bezio v. Draeger, __ F.3d __, No. 13-1910, 2013 WL 6570920 (1st Cir. Dec....
Scary Results if Employers Overreach in Arbitration Clauses
November 19, 2013
No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby...
November 19, 2013
No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby...
Illusoriness Gains In Popularity As An Arbitration Buster
September 24, 2013
You hear more about Lena Dunham than you expect, given the audience for “Girls”, right? (Read this article for more.) The same is true, or should be true, for the contract defense of illusoriness. After decades of disuse, it is popping up more and more often as a defense to the enforcement of arbitration clauses (like in New Mexico and the Fifth Circuit), and therefore qualifies as the “it girl” of arbitration law. Just last week, the Sixth Circuit issued a new decision, affirming...
September 24, 2013
You hear more about Lena Dunham than you expect, given the audience for “Girls”, right? (Read this article for more.) The same is true, or should be true, for the contract defense of illusoriness. After decades of disuse, it is popping up more and more often as a defense to the enforcement of arbitration clauses (like in New Mexico and the Fifth Circuit), and therefore qualifies as the “it girl” of arbitration law. Just last week, the Sixth Circuit issued a new decision, affirming...
Legal Ethics Rules and the Federal Arbitration Act
September 8, 2013
While the U.S. Supreme Court as recently as last month has affirmed its preference to enforce contractual arbitration clauses, a federal judge in Philadelphia questioned Wednesday whether that standard is impacted by professional ethics rules when the arbitration clause involves a law firm's client engagement letter. In a hearing on whether the legal malpractice case of Sanford v. Bracewell & Giuliani should be stayed pending arbitration, U.S. District Judge Joel Slomsky of the Eastern District...
September 8, 2013
While the U.S. Supreme Court as recently as last month has affirmed its preference to enforce contractual arbitration clauses, a federal judge in Philadelphia questioned Wednesday whether that standard is impacted by professional ethics rules when the arbitration clause involves a law firm's client engagement letter. In a hearing on whether the legal malpractice case of Sanford v. Bracewell & Giuliani should be stayed pending arbitration, U.S. District Judge Joel Slomsky of the Eastern District...
