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Arbitration
Arbitration Agreement On Barnes & Noble’s Website Not Enforceable
October 22, 2014
In a case between an on-line customer and Barnes & Noble, the Ninth Circuit recently refused to enforce the arbitration agreement found in the website’s “Terms of Use.” Nguyen v. Barnes & Noble Inc., __ F.3d__, 2014 WL 4056549 (9th Cir. Aug. 18, 2014). The decision further calls into question the validity of “browsewrap” agreements, which the consumer does not have to assent to or acknowledge before making a purchase. The plaintiff’s case against B&N stemmed from his attempt to buy a Touchpad...
October 22, 2014
In a case between an on-line customer and Barnes & Noble, the Ninth Circuit recently refused to enforce the arbitration agreement found in the website’s “Terms of Use.” Nguyen v. Barnes & Noble Inc., __ F.3d__, 2014 WL 4056549 (9th Cir. Aug. 18, 2014). The decision further calls into question the validity of “browsewrap” agreements, which the consumer does not have to assent to or acknowledge before making a purchase. The plaintiff’s case against B&N stemmed from his attempt to buy a Touchpad...
End Of The World As We Know It (for Employment Arbitration)?
October 21, 2014
Cue the R.E.M folks, because the Supreme Court of Missouri issued a 4-3 opinion recently that appears to upend many employment arbitration agreements in that state. Baker v. Bristol Care, Inc., __ S.W.3d__, 2014 WL 4086378 (Mo. Aug. 19, 2014). However, the situation is not as dire as it may seem. The high court in Missouri agreed with the lower court that the arbitration agreement in the parties’ employment contract was invalid (and therefore the employer could not compel arbitration of the putative...
October 21, 2014
Cue the R.E.M folks, because the Supreme Court of Missouri issued a 4-3 opinion recently that appears to upend many employment arbitration agreements in that state. Baker v. Bristol Care, Inc., __ S.W.3d__, 2014 WL 4086378 (Mo. Aug. 19, 2014). However, the situation is not as dire as it may seem. The high court in Missouri agreed with the lower court that the arbitration agreement in the parties’ employment contract was invalid (and therefore the employer could not compel arbitration of the putative...
Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid
October 20, 2014
Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas...
October 20, 2014
Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas...
‘Arbitrator Intelligence’ Is Here!
October 20, 2014
Contributing Awards The Arbitrator Intelligence site has been designed to make finding and submitting Awards easy and, yes, fun! There are two ways to contribute awards. The first way is simply to upload any award you may have collecting dust on your office shelves, cluttering your office drawers, or taking up space on your computer. The second way more closely resembles a global treasure hunt. The site includes an interactive, color-coded Map. For each jurisdiction that is shaded, we have...
October 20, 2014
Contributing Awards The Arbitrator Intelligence site has been designed to make finding and submitting Awards easy and, yes, fun! There are two ways to contribute awards. The first way is simply to upload any award you may have collecting dust on your office shelves, cluttering your office drawers, or taking up space on your computer. The second way more closely resembles a global treasure hunt. The site includes an interactive, color-coded Map. For each jurisdiction that is shaded, we have...
The Latest Thinking on Mandatory Arbitration
October 18, 2014
As promised Wednesday, I wanted to post about the very interesting discussion panel on mandatory arbitration put together...
October 18, 2014
As promised Wednesday, I wanted to post about the very interesting discussion panel on mandatory arbitration put together...
Do the Capital Markets Value Delaware Corporate Law?
October 15, 2014
In a recent paper, Jeffrey Manns (GW Law) and I use a new empirical technique to estimate the value of Delaware corporate law relative to that of other states. We find that the capital markets place little, if any, value on Delaware corporate law, suggesting that Delaware's dominance is instead the result of herding effects and network externalities. You can read the paper here, and the abstract is pasted below: Delaware dominates the market for company incorporations, which places one of America’s...
October 15, 2014
In a recent paper, Jeffrey Manns (GW Law) and I use a new empirical technique to estimate the value of Delaware corporate law relative to that of other states. We find that the capital markets place little, if any, value on Delaware corporate law, suggesting that Delaware's dominance is instead the result of herding effects and network externalities. You can read the paper here, and the abstract is pasted below: Delaware dominates the market for company incorporations, which places one of America’s...
New York Federal Court Cannot Compel Arbitration in Georgia
October 15, 2014
A New York federal court recently was presented with a motion to compel arbitration in Georgia. The district court first concluded that the arbitration provision was enforceable and then proceeded to the question of whether it had the authority to compel arbitration in a district other than its own. The court described what it deemed an “internal conflict” within the Federal Arbitration Act because the Act provides both that (1) courts must enforce an arbitration agreement in accordance with...
October 15, 2014
A New York federal court recently was presented with a motion to compel arbitration in Georgia. The district court first concluded that the arbitration provision was enforceable and then proceeded to the question of whether it had the authority to compel arbitration in a district other than its own. The court described what it deemed an “internal conflict” within the Federal Arbitration Act because the Act provides both that (1) courts must enforce an arbitration agreement in accordance with...
Want to Exclude Something From Arbitration? Be Specific
October 14, 2014
There are a lot of pros to alternative dispute resolution, but “sometimes it is in a party’s interest to have a dispute resolution mechanism that is long, onerous and expensive,” says Shep Davidson of Burns & Levinson. So although arbitration clauses in contracts are all the rage, sometimes they should be drafted with an eye to the fact that some claims are more strategically solved through the litigation process. To do this, Davidson suggests drawing on a recent case out of the U.S. Court...
October 14, 2014
There are a lot of pros to alternative dispute resolution, but “sometimes it is in a party’s interest to have a dispute resolution mechanism that is long, onerous and expensive,” says Shep Davidson of Burns & Levinson. So although arbitration clauses in contracts are all the rage, sometimes they should be drafted with an eye to the fact that some claims are more strategically solved through the litigation process. To do this, Davidson suggests drawing on a recent case out of the U.S. Court...
Browsewrap Agreements Not Vehicles for Abritration Clauses
October 13, 2014
Businesses wanting to bind consumers to arbitration clauses should not hide them in website terms of use agreements, according to a recent post on the Socially Aware blog by Morrison Foerster partner John Delaney and Sherman Kahn of Mauriel Kapouytian Woods. The case revolved around Touchpads, which the plaintiff tried to buy online from Barnes & Noble. After ordering two, he was notified the next day by the company that they were essentially out of stock due to high demand, The plaintiff sued...
October 13, 2014
Businesses wanting to bind consumers to arbitration clauses should not hide them in website terms of use agreements, according to a recent post on the Socially Aware blog by Morrison Foerster partner John Delaney and Sherman Kahn of Mauriel Kapouytian Woods. The case revolved around Touchpads, which the plaintiff tried to buy online from Barnes & Noble. After ordering two, he was notified the next day by the company that they were essentially out of stock due to high demand, The plaintiff sued...
Don’t Fear Arbitration—Embrace and Control the Process
October 13, 2014
In his address to the annual meeting of the American Arbitration Association in 2010, the Association’s then-president, William Slate, raised eyebrows when in his keynote address he challenged AAA neutrals and corporate counsel attending the conference to be more aggressive in taking charge of the arbitration process, which many believed had become too cumbersome, expensive and lengthy—in short, too much like federal litigation. Slate promised that the AAA would enact new rules to combat these...
October 13, 2014
In his address to the annual meeting of the American Arbitration Association in 2010, the Association’s then-president, William Slate, raised eyebrows when in his keynote address he challenged AAA neutrals and corporate counsel attending the conference to be more aggressive in taking charge of the arbitration process, which many believed had become too cumbersome, expensive and lengthy—in short, too much like federal litigation. Slate promised that the AAA would enact new rules to combat these...
