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Arbitration
New Prime v. Oliveira Part II: Federal Arbitration Act Section One “Contracts of Employment” Exemption Includes Independent Contractors
February 15, 2019
Section 1 of the Federal Arbitration Act (the “FAA”) exempts from the FAA’s scope disputes involving “contracts of employment of . . . workers engaged in . . . interstate commerce.” 9 U. S. C. § 1. Does the FAA apply to an agreement to arbitrate disputes between an individual trucker and an interstate trucking company if the contract between them establishes an independent contractor relationship, not an employer-employee one? In New Prime Inc. v. Oliveira, 586 ___ U.S....
February 15, 2019
Section 1 of the Federal Arbitration Act (the “FAA”) exempts from the FAA’s scope disputes involving “contracts of employment of . . . workers engaged in . . . interstate commerce.” 9 U. S. C. § 1. Does the FAA apply to an agreement to arbitrate disputes between an individual trucker and an interstate trucking company if the contract between them establishes an independent contractor relationship, not an employer-employee one? In New Prime Inc. v. Oliveira, 586 ___ U.S....
Cognitive Errors and Thinking Aids: Rationalising Choice of Law and Arbitration Clauses
February 14, 2019
We often mislead ourselves into believing that, by arriving at a certain contract decision, we have carefully considered all available options, weighed up the pros and cons of each attribute dispassionately, and selected the most favourable outcome, i.e. the one which maximises our welfare in the transaction. Regretfully, however, we are seldom cognisant of the rational components that form part of our contract decisions. In fact, we are rather often oblivious to the myriad of factors that a bad choice...
February 14, 2019
We often mislead ourselves into believing that, by arriving at a certain contract decision, we have carefully considered all available options, weighed up the pros and cons of each attribute dispassionately, and selected the most favourable outcome, i.e. the one which maximises our welfare in the transaction. Regretfully, however, we are seldom cognisant of the rational components that form part of our contract decisions. In fact, we are rather often oblivious to the myriad of factors that a bad choice...
Massachusetts Law Bars Mandatory Arbitration as a Condition of Receiving Free Credit Monitoring Following a Data Breach
February 14, 2019
This month, the Governor of Massachusetts signed into law a number of amendments to current state data breach notification legislation. ...
February 14, 2019
This month, the Governor of Massachusetts signed into law a number of amendments to current state data breach notification legislation. ...
Defending and Promoting Arbitration: Make it Simple!
February 13, 2019
Over the last couple of decades, arbitration, its practical aspects, but also its very notion, have faced severe attacks from a variety of critics: politicians, members of civil society, users, etc. While arbitration practitioners are actively tackling many areas of reform, the majority of these denunciations appear, for the most part, biased and overly simplistic. Yet, these critiques have pervaded the public discourse, probably due to a lack of effort to educate, convey, and promote the spirit...
February 13, 2019
Over the last couple of decades, arbitration, its practical aspects, but also its very notion, have faced severe attacks from a variety of critics: politicians, members of civil society, users, etc. While arbitration practitioners are actively tackling many areas of reform, the majority of these denunciations appear, for the most part, biased and overly simplistic. Yet, these critiques have pervaded the public discourse, probably due to a lack of effort to educate, convey, and promote the spirit...
Schein, Inc. v. Archer & White Sales, Inc.: Upholding Principles of Arbitration, but Leaving Open Question Regarding Competence-Competence
February 13, 2019
1. The Holding in Schein, Inc. v. Archer & White Sales, Inc. Maintains Principles of Arbitration In a recent unanimous decision dated 8 January 2019, Justice Kavanaugh delivered his first opinion of the United States Supreme Court (the “Court”) in Henry Schein, Inc. v. Archer and White Sales, Inc. As set-out below, the Court’s decision in Schein is in line with principles of international arbitration – namely that courts must respect the terms of the arbitration...
February 13, 2019
1. The Holding in Schein, Inc. v. Archer & White Sales, Inc. Maintains Principles of Arbitration In a recent unanimous decision dated 8 January 2019, Justice Kavanaugh delivered his first opinion of the United States Supreme Court (the “Court”) in Henry Schein, Inc. v. Archer and White Sales, Inc. As set-out below, the Court’s decision in Schein is in line with principles of international arbitration – namely that courts must respect the terms of the arbitration...
Injunction and Arbitration
February 12, 2019
A recent case out of the District of Oregon, Sixel, LLC v. Penning, No. 6:17-cv-01846-AA, has a fairly typical fight over whether or not a claim needs to be arbitrated, but in this case it's the employer who doesn't want to arbitrate and the employees who are fighting to enforce the arbitration clause. The case involves allegations of trade secret theft, and Sixel relies on the fact that the arbitration clause permits it to pursue injunctive relief in the court. However, the employees...
February 12, 2019
A recent case out of the District of Oregon, Sixel, LLC v. Penning, No. 6:17-cv-01846-AA, has a fairly typical fight over whether or not a claim needs to be arbitrated, but in this case it's the employer who doesn't want to arbitrate and the employees who are fighting to enforce the arbitration clause. The case involves allegations of trade secret theft, and Sixel relies on the fact that the arbitration clause permits it to pursue injunctive relief in the court. However, the employees...
NY Federal Court Orders Dispute With Digital Currency Exchange to Arbitration
February 11, 2019
The Eastern District of New York has ordered a negligence case that was filed against a digital currency exchange...
February 11, 2019
The Eastern District of New York has ordered a negligence case that was filed against a digital currency exchange...
Arbitration: Law, Policy and Practice, Chapter One
February 8, 2019
Arbitration: Law, Policy, and Practice provides the ideal blend of arbitration case law, problems, and experiential exercises for students. This book features a full arbitration case file to enable students to experience the arbitration hearing from beginning to end, whether in the role of party, lawyer, or neutral. Special chapters on all aspects of the arbitration process enable students to explore the practical side of arbitration through the lens of both arbitrator and advocate. The book also...
February 8, 2019
Arbitration: Law, Policy, and Practice provides the ideal blend of arbitration case law, problems, and experiential exercises for students. This book features a full arbitration case file to enable students to experience the arbitration hearing from beginning to end, whether in the role of party, lawyer, or neutral. Special chapters on all aspects of the arbitration process enable students to explore the practical side of arbitration through the lens of both arbitrator and advocate. The book also...
New Jersey on a Continued, Collision Course with SCOTUS?
February 8, 2019
Last week, the New Jersey Supreme Court issued an arbitration decision in Kernahan v. Home Warranty Administrator of Florida,...
February 8, 2019
Last week, the New Jersey Supreme Court issued an arbitration decision in Kernahan v. Home Warranty Administrator of Florida,...
Twitter Isn’t Required to Include an Arbitration Clause
February 7, 2019
In a recent case out of the District of Arizona, Brittain v. Twitter Inc., No. CV-18-01714-PHX-DG (behind paywall), a court finds Twitter's terms enforceable as neither illusory nor unconscionable. The plaintiffs admitted that they agreed to Twitter's terms of service, but they argued the terms were illusory and unconscionable. The illusory argument depended on the assertion that Twitter could unilaterally modify the terms at its discretion. But, unlike other cases where the terms were...
February 7, 2019
In a recent case out of the District of Arizona, Brittain v. Twitter Inc., No. CV-18-01714-PHX-DG (behind paywall), a court finds Twitter's terms enforceable as neither illusory nor unconscionable. The plaintiffs admitted that they agreed to Twitter's terms of service, but they argued the terms were illusory and unconscionable. The illusory argument depended on the assertion that Twitter could unilaterally modify the terms at its discretion. But, unlike other cases where the terms were...
