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Arbitration
FL: Appellate Court Upholds Constitutionality of Med Mal Cap if Arbitration Offer Had Been Rejected by Plaintiff
December 23, 2019
On Wednesday, a south Florida appellate court upheld as constitutional a $350,000 cap on pain and suffering in med mal cases in which a healthcare provider's offer to arbitrate was rejected and the plaintiff filed suit. The distinction is important because the Florida Supreme Court held in 2017 that caps on pain and suffering in med mal cases generally are unconstitutional. WUSF has the story.
December 23, 2019
On Wednesday, a south Florida appellate court upheld as constitutional a $350,000 cap on pain and suffering in med mal cases in which a healthcare provider's offer to arbitrate was rejected and the plaintiff filed suit. The distinction is important because the Florida Supreme Court held in 2017 that caps on pain and suffering in med mal cases generally are unconstitutional. WUSF has the story.
Delegation Agreements, Separability, Schein II, and the October 2019 Edition of CPR Alternatives
November 26, 2019
There have been a number of important cases decided in 2019 concerning the application and effect of “delegation provisions”—clear and unmistakable agreements to arbitrate arbitrability issues. Delegation provisions, which we’ll refer to as “delegation agreements,” are not a recent phenomenon, and are quite common, especially in administered arbitration, where consent to applicable arbitration rules typically includes clear and unmistakable consent to arbitrate arbitrability. But there’s...
November 26, 2019
There have been a number of important cases decided in 2019 concerning the application and effect of “delegation provisions”—clear and unmistakable agreements to arbitrate arbitrability issues. Delegation provisions, which we’ll refer to as “delegation agreements,” are not a recent phenomenon, and are quite common, especially in administered arbitration, where consent to applicable arbitration rules typically includes clear and unmistakable consent to arbitrate arbitrability. But there’s...
Is Manifest Disregard Alive and Well in the Second Circuit?: A Remand to Find Out
November 25, 2019
In domestic award enforcement proceedings, the U.S. federal Court of Appeals for the Second Circuit (“Second Circuit”) in New York recently reversed a lower federal trial court’s decision to vacate that award on grounds that the arbitrator manifestly disregarded the law. See Weiss v. Sallie Mae, Inc., Dkt. No. 18-2362, Slip Op. (2d Cir. Sept. 12, 2019). While Weiss appears at first blush to be a pro-arbitration decision, closer examination reveals it is less...
November 25, 2019
In domestic award enforcement proceedings, the U.S. federal Court of Appeals for the Second Circuit (“Second Circuit”) in New York recently reversed a lower federal trial court’s decision to vacate that award on grounds that the arbitrator manifestly disregarded the law. See Weiss v. Sallie Mae, Inc., Dkt. No. 18-2362, Slip Op. (2d Cir. Sept. 12, 2019). While Weiss appears at first blush to be a pro-arbitration decision, closer examination reveals it is less...
The U.S. Law of Arbitration: From 1925 to 2019
November 22, 2019
The progression of arbitration law in the American legal system has been steadfast. Despite a few uneasy rulings, the U.S. Supreme Court (“SCOTUS” or “the Court”) has provided resolute support for arbitration and proclaimed the legitimacy of its enhanced adjudicatory role. The few rulings that strayed from the contemporary judicial evaluation of arbitration1) eventually were reconsidered and their impact on the law significantly lessened or entirely redefined. For example, the Rodriguez Court...
November 22, 2019
The progression of arbitration law in the American legal system has been steadfast. Despite a few uneasy rulings, the U.S. Supreme Court (“SCOTUS” or “the Court”) has provided resolute support for arbitration and proclaimed the legitimacy of its enhanced adjudicatory role. The few rulings that strayed from the contemporary judicial evaluation of arbitration1) eventually were reconsidered and their impact on the law significantly lessened or entirely redefined. For example, the Rodriguez Court...
The Repeat Player, Arbitration Providers, Evident Partiality, and the Ninth Circuit
November 21, 2019
Federal Arbitration Act (“FAA”) Section 10 permits Courts to vacate awards “where there was evident partiality. . . in the arbitrators. . . .” 9 U.S.C. § 10(a)(2). If an arbitrator fails to disclose an ownership interest in an arbitration provider, which has a nontrivial, repeat player relationship with a party, should the award be vacated for evident partiality? What constitutes evident partiality and under what circumstances is a controversial and sometimes elusive topic. We’ve written...
November 21, 2019
Federal Arbitration Act (“FAA”) Section 10 permits Courts to vacate awards “where there was evident partiality. . . in the arbitrators. . . .” 9 U.S.C. § 10(a)(2). If an arbitrator fails to disclose an ownership interest in an arbitration provider, which has a nontrivial, repeat player relationship with a party, should the award be vacated for evident partiality? What constitutes evident partiality and under what circumstances is a controversial and sometimes elusive topic. We’ve written...
California Bans Mandatory Arbitration Agreements as a Condition of Employment
November 19, 2019
California Governor Gavin Newsom has signed a law that prohibits employers in the state from requiring workers to sign a mandatory arbitration provision as a condition of employment. AB 51 mandates that an “employer shall not threaten, retaliate or discriminate against, or terminate any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of the California Fair Employment and Housing Act or this...
November 19, 2019
California Governor Gavin Newsom has signed a law that prohibits employers in the state from requiring workers to sign a mandatory arbitration provision as a condition of employment. AB 51 mandates that an “employer shall not threaten, retaliate or discriminate against, or terminate any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of the California Fair Employment and Housing Act or this...
Leslie on Conspiracies to Arbitrate
November 14, 2019
Christopher R. Leslie (University of California, Irvine School of Law) has posted Conspiracy to Arbitrate (North Carolina Law Review, Vol. 96, No. 2, 2017) on SSRN. Here is the abstract: Beginning in the 1980s, the Supreme Court has ushered in a new Age of Arbitration in which firms can use arbitration clauses to include otherwise unenforceable terms in their contracts, which may allow defendants to shorten statutes of limitations, to limit damages, and to prevent injunctive remedies...
November 14, 2019
Christopher R. Leslie (University of California, Irvine School of Law) has posted Conspiracy to Arbitrate (North Carolina Law Review, Vol. 96, No. 2, 2017) on SSRN. Here is the abstract: Beginning in the 1980s, the Supreme Court has ushered in a new Age of Arbitration in which firms can use arbitration clauses to include otherwise unenforceable terms in their contracts, which may allow defendants to shorten statutes of limitations, to limit damages, and to prevent injunctive remedies...
SCOTX Refuses to Weigh in on Oil & Gas Arbitration Dispute
November 13, 2019
The Supreme Court of Texas will not consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. According to another Disputing blog post: In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan...
November 13, 2019
The Supreme Court of Texas will not consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. According to another Disputing blog post: In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan...
Arbitration Jurisprudence Takes Strange Turn
November 8, 2019
The twisted course of arbitration jurisprudence in New Jersey has taken yet another peculiar detour. In the most recent...
November 8, 2019
The twisted course of arbitration jurisprudence in New Jersey has taken yet another peculiar detour. In the most recent...
Sixth Circuit Creates Split on International Arbitration Discovery Question
November 7, 2019
The United States Court of Appeals for the Sixth Circuit has created a circuit split regarding whether 28 U.S.C....
November 7, 2019
The United States Court of Appeals for the Sixth Circuit has created a circuit split regarding whether 28 U.S.C....
