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Arbitration
Fancy Footwork in Sidestepping Arbitration
August 28, 2014
A new piece by Jonathan R. Harkavy, Class Action Waivers in Title VII Cases after Italian Colors: Sidestepping the Individual Arbitration Mandate, recently posted on SSRN: The Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 570 U.S. -- 186 L. Ed. 2d 417, 133 S. Ct. 2403 (2013), that class action waivers ordinarily must be enforced under the Federal Arbitration Act even when the cost of an arbitration exceeds a claimant's potential recovery. This essay suggests, however,...
August 28, 2014
A new piece by Jonathan R. Harkavy, Class Action Waivers in Title VII Cases after Italian Colors: Sidestepping the Individual Arbitration Mandate, recently posted on SSRN: The Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 570 U.S. -- 186 L. Ed. 2d 417, 133 S. Ct. 2403 (2013), that class action waivers ordinarily must be enforced under the Federal Arbitration Act even when the cost of an arbitration exceeds a claimant's potential recovery. This essay suggests, however,...
Court Finds that Party Who Signed “Flounder” Is Not Bound to New Employment Agreement
August 27, 2014
In Random Ventures, Inc. v. Advanced Armament Corp., the District Court for the Southern District of New York found that a party that wrote the word "flounder" on a signature line was not bound by the document on which he scribbled that word. For the full context, you would have to read the 117-page District Court opinion. Our highly-consdensed summary is as follows: Kevin Brittingham formed a company, Advanced Armament Corp. (AAC) that designed and manufactured silencers for firearms. AAC thrived...
August 27, 2014
In Random Ventures, Inc. v. Advanced Armament Corp., the District Court for the Southern District of New York found that a party that wrote the word "flounder" on a signature line was not bound by the document on which he scribbled that word. For the full context, you would have to read the 117-page District Court opinion. Our highly-consdensed summary is as follows: Kevin Brittingham formed a company, Advanced Armament Corp. (AAC) that designed and manufactured silencers for firearms. AAC thrived...
Disaggregative Mechanisms: Mass Claims Resolution Without Class Actions
August 27, 2014
Aggregation has long been viewed as the primary, if not sole, vehicle for mass claims resolution. For a half century, scholars have consistently viewed the consolidated litigation of similar claims as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental assumption. This Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass...
August 27, 2014
Aggregation has long been viewed as the primary, if not sole, vehicle for mass claims resolution. For a half century, scholars have consistently viewed the consolidated litigation of similar claims as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental assumption. This Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass...
Ninth Circuit Finds that Nordstrom Gave Sufficient Notice of Its Class-Action Waiver
August 26, 2014
This is just a bad time to be an employee of a major department store on the West Coast. In Davis v. Nordstrom, Inc. the same panel that decided Johnmohammadi v. Bloomingdale's, Inc., about which we blogged yesterday, granted Nordstrom's motion to compel individual arbitration, overturning the District Court's denial for that motion. In August 2011, Faine Davis filed a purported class action against Nordstrom, alleging nonpayment of wages, failure to provide meal periods and rest breaks, and unfair...
August 26, 2014
This is just a bad time to be an employee of a major department store on the West Coast. In Davis v. Nordstrom, Inc. the same panel that decided Johnmohammadi v. Bloomingdale's, Inc., about which we blogged yesterday, granted Nordstrom's motion to compel individual arbitration, overturning the District Court's denial for that motion. In August 2011, Faine Davis filed a purported class action against Nordstrom, alleging nonpayment of wages, failure to provide meal periods and rest breaks, and unfair...
Ninth Circuit Enforces Class-Action Waiver Despite Federal Statutes
August 26, 2014
Fatemeh Johnmohammadi was an employee of Bloomingdale's, Inc. (Bloomingdale's). She sought to bring a state class-action claim alleging that she and others, similarly situated, were owed overtime wages. Bloomindale's removed the case to federal court and then filed a motion to compel arbitration of Johnmohammadi's claims. The District Court granted the motion and dismissed the case without prejudice. Johnmohammadi appealed to the Ninth Circuit. In Johnmohammadi v. Bloomingdale's, Inc., the Ninth...
August 26, 2014
Fatemeh Johnmohammadi was an employee of Bloomingdale's, Inc. (Bloomingdale's). She sought to bring a state class-action claim alleging that she and others, similarly situated, were owed overtime wages. Bloomindale's removed the case to federal court and then filed a motion to compel arbitration of Johnmohammadi's claims. The District Court granted the motion and dismissed the case without prejudice. Johnmohammadi appealed to the Ninth Circuit. In Johnmohammadi v. Bloomingdale's, Inc., the Ninth...
American Apparel and Arbitration Clauses
August 26, 2014
It's been hard for me to avert my eyes from the train wreck happening at American Apparel. Yes, I heard the rumors about...
August 26, 2014
It's been hard for me to avert my eyes from the train wreck happening at American Apparel. Yes, I heard the rumors about...
FINRA Announces Arbitration Task Force Created to Address Criticism
August 25, 2014
The Financial Industry Regulatory Authority (“FINRA“) recently announced the formation of a task force that will examine possible improvements to “the transparency, impartiality and efficiency of FINRA’s securities arbitration forum for all participants.” The 13-member Arbitration Task Force includes six members of the financial industry and seven members of the general public. The Task Force will reportedly consider possible improvements and enhancements to current FINRA arbitral procedures....
August 25, 2014
The Financial Industry Regulatory Authority (“FINRA“) recently announced the formation of a task force that will examine possible improvements to “the transparency, impartiality and efficiency of FINRA’s securities arbitration forum for all participants.” The 13-member Arbitration Task Force includes six members of the financial industry and seven members of the general public. The Task Force will reportedly consider possible improvements and enhancements to current FINRA arbitral procedures....
Improving Judicial Performance in Matters Involving International Arbitration
August 25, 2014
University of Missouri School of Law Associate Professor S.I. Strong has published a book chapter entitled Improving Judicial Performance in Matters Involving International Arbitration in Selected Topics in International Arbitration: Liber Amicorum, Julio César Betancourt, 2014, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2014-19. In her chapter, Professor Strong examines how best to ensure that judges enforce international commercial and investment arbitration...
August 25, 2014
University of Missouri School of Law Associate Professor S.I. Strong has published a book chapter entitled Improving Judicial Performance in Matters Involving International Arbitration in Selected Topics in International Arbitration: Liber Amicorum, Julio César Betancourt, 2014, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2014-19. In her chapter, Professor Strong examines how best to ensure that judges enforce international commercial and investment arbitration...
Fifth Circuit Says Decision to Remand a Dispute Back to Arbitral Panel for Clarification May Not be Appealed
August 22, 2014
The United States Court of Appeals for the Fifth Circuit refused to review a district court’s decision to remand a dispute back to the original arbitral panel. In Murchison Capital Partners, LP v. Nuance Communications, Inc., No. 13-10852, a limited partnership (“Murchison”) claimed that Nuance Communications (“Nuance”) fraudulently induced the partnership’s members to approve a merger with Nuance in return for a lump sum payment and contingent future revenues from a specific software...
August 22, 2014
The United States Court of Appeals for the Fifth Circuit refused to review a district court’s decision to remand a dispute back to the original arbitral panel. In Murchison Capital Partners, LP v. Nuance Communications, Inc., No. 13-10852, a limited partnership (“Murchison”) claimed that Nuance Communications (“Nuance”) fraudulently induced the partnership’s members to approve a merger with Nuance in return for a lump sum payment and contingent future revenues from a specific software...
The Construction of Commercial Contracts
August 22, 2014
Major developments in the English law of contract construction have been adopted in most Commonwealth countries, including New Zealand. These pose challenges to practitioners and at the level of theory. Part of the challenge is the ever increasing role of context. Are practitioners expected to prepare interpretation advices on the basis of the same level of inquiry that would occur in litigation even if the matter is not litigious? Another difficulty is the inability of courts to formulate rules...
August 22, 2014
Major developments in the English law of contract construction have been adopted in most Commonwealth countries, including New Zealand. These pose challenges to practitioners and at the level of theory. Part of the challenge is the ever increasing role of context. Are practitioners expected to prepare interpretation advices on the basis of the same level of inquiry that would occur in litigation even if the matter is not litigious? Another difficulty is the inability of courts to formulate rules...
