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Arbitration
Making the Case for Arbitration
August 14, 2014
Is litigation “better” than arbitration? What does “better” mean, and who decides? The debate over arbitration vs. litigation has been going on for years, and will likely continue . . . with no clear winner. Aaron Foldenauer essentially invited this discussion in his July 29 article on CorpCounsel.com, “Big Risks and Disadvantages of Arbitration vs. Litigation.” While my article responds to some of the criticisms of arbitration in that one, I hope that it is a thoughtful counterpoint....
August 14, 2014
Is litigation “better” than arbitration? What does “better” mean, and who decides? The debate over arbitration vs. litigation has been going on for years, and will likely continue . . . with no clear winner. Aaron Foldenauer essentially invited this discussion in his July 29 article on CorpCounsel.com, “Big Risks and Disadvantages of Arbitration vs. Litigation.” While my article responds to some of the criticisms of arbitration in that one, I hope that it is a thoughtful counterpoint....
Bylaws Mandating Arbitration of Stockholder Disputes?
August 12, 2014
Would a board-adopted bylaw mandating arbitration of stockholder disputes and eliminating the right to pursue such claims...
August 12, 2014
Would a board-adopted bylaw mandating arbitration of stockholder disputes and eliminating the right to pursue such claims...
Fifth Circuit Panel Divided on Order Remanding to Arbitration Panel
August 11, 2014
The Court is divided on whether it has jurisdiction to review the District Court's order remanding a matter back to an arbitration panel for clarification of its arbitration award. The majority concludes that the District Court's order is not a final order, and consequently dismisses the appeal for lack of jurisdiction. A dissent explains why it is wrong to consider the District Court's order as non-final and not immediately appealable.
August 11, 2014
The Court is divided on whether it has jurisdiction to review the District Court's order remanding a matter back to an arbitration panel for clarification of its arbitration award. The majority concludes that the District Court's order is not a final order, and consequently dismisses the appeal for lack of jurisdiction. A dissent explains why it is wrong to consider the District Court's order as non-final and not immediately appealable.
California Supreme Court Finally Recognizes Class and Collective Arbitration Waivers
August 11, 2014
An interesting case decided by the California Supreme Court overturned the court’s prior holding that class and collective arbitration waivers violate public policy and also recognized that the issue is preempted by the Federal Arbitration Act (FAA). In Iskanian v. CLS Transportation, a worker sought to file a class action lawsuit against his employer over a number of wage and hour claims despite that he signed an arbitral agreement waiving his right to class proceedings when he was hired. The man also...
August 11, 2014
An interesting case decided by the California Supreme Court overturned the court’s prior holding that class and collective arbitration waivers violate public policy and also recognized that the issue is preempted by the Federal Arbitration Act (FAA). In Iskanian v. CLS Transportation, a worker sought to file a class action lawsuit against his employer over a number of wage and hour claims despite that he signed an arbitral agreement waiving his right to class proceedings when he was hired. The man also...
The Supreme Court’s Class Action Certification Trilogy
August 8, 2014
A trifecta of recent U.S. Supreme Court opinions has decisively transformed Rule 23 class certification from a pleading proceeding to a proof proceeding. The class certification hearing, post-trilogy, will essentially become a bench trial. To oppose plaintiff’s motion for class certification, persuasive legal argument alone may no longer be sufficient. Companies must develop a robust and comprehensive evidentiary record that is both admissible and persuasive. Is your company ready to defeat class...
August 8, 2014
A trifecta of recent U.S. Supreme Court opinions has decisively transformed Rule 23 class certification from a pleading proceeding to a proof proceeding. The class certification hearing, post-trilogy, will essentially become a bench trial. To oppose plaintiff’s motion for class certification, persuasive legal argument alone may no longer be sufficient. Companies must develop a robust and comprehensive evidentiary record that is both admissible and persuasive. Is your company ready to defeat class...
Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play
August 8, 2014
Thomas J. Stipanowich, Academic Director of the Straus Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law at the Pepperdine University School of Law, and Zachary P. Ulrich, Research Fellow at the Straus Institute for Dispute Resolution, recently published Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, 6 Penn State Yearbook on Arbitration and Mediation 1 (2014); Pepperdine University Legal Studies Research...
August 8, 2014
Thomas J. Stipanowich, Academic Director of the Straus Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law at the Pepperdine University School of Law, and Zachary P. Ulrich, Research Fellow at the Straus Institute for Dispute Resolution, recently published Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, 6 Penn State Yearbook on Arbitration and Mediation 1 (2014); Pepperdine University Legal Studies Research...
U.S. Supreme Court Refuses to Consider Whether Arbitration Agreement Precludes Wrongful Death Case Against Nursing Home
August 7, 2014
The United States Supreme Court has reportedly denied a petition asking the court to consider whether an arbitration agreement precludes a wrongful death claim against a nursing home. Last August, the Pennsylvania Superior Court ruled in Pisano v. Extendicare that the state’s wrongful death statute creates a cause of action that is separate and independent from any personal injury claims that are properly subject to arbitration under a broad agreement that was signed by the decedent’s daughter....
August 7, 2014
The United States Supreme Court has reportedly denied a petition asking the court to consider whether an arbitration agreement precludes a wrongful death claim against a nursing home. Last August, the Pennsylvania Superior Court ruled in Pisano v. Extendicare that the state’s wrongful death statute creates a cause of action that is separate and independent from any personal injury claims that are properly subject to arbitration under a broad agreement that was signed by the decedent’s daughter....
Executive Order Requires New Labor Disclosures
August 6, 2014
A spate of executive orders issued by President Barack Obama in 2014 has made it an eventful year for federal contractors. From his minimum-wage hike in January to his LGBT employment protection order in July, Obama has been putting his tactic of governing by “pen and phone” to use. The latest use of this approach is the “Fair Pay and Safe Workplaces Executive Order,” signed by the president on Thursday. The order requires most federal contractors to disclose new facts about labor law violations,...
August 6, 2014
A spate of executive orders issued by President Barack Obama in 2014 has made it an eventful year for federal contractors. From his minimum-wage hike in January to his LGBT employment protection order in July, Obama has been putting his tactic of governing by “pen and phone” to use. The latest use of this approach is the “Fair Pay and Safe Workplaces Executive Order,” signed by the president on Thursday. The order requires most federal contractors to disclose new facts about labor law violations,...
Houston Appeals Court Affirms Arbitration Award for Environmental and Other Damages in Oil and Gas Case
August 6, 2014
Texas’ First Court of Appeals in Houston has affirmed a trial court’s decision to confirm an arbitration panel’s damages award in an oil and gas exploration and production dispute. In Forest Oil Corp. v. El Rucio Land and Cattle Co., Inc., et al., No. 01-13-00040-CV (Tex. App. – Houston [1st Dist.], July 24, 2014), a property owner, McAllen, sued Forest Oil Corporation over the alleged environmental damage the company caused to his ranch. According to McAllen, Forest Oil contaminated the soil...
August 6, 2014
Texas’ First Court of Appeals in Houston has affirmed a trial court’s decision to confirm an arbitration panel’s damages award in an oil and gas exploration and production dispute. In Forest Oil Corp. v. El Rucio Land and Cattle Co., Inc., et al., No. 01-13-00040-CV (Tex. App. – Houston [1st Dist.], July 24, 2014), a property owner, McAllen, sued Forest Oil Corporation over the alleged environmental damage the company caused to his ranch. According to McAllen, Forest Oil contaminated the soil...
Texas Supreme Court Denies Petition for Review in Fraud Suit Filed Following Arbitration
August 5, 2014
The Supreme Court of Texas declined to review a fraud case stemming from an arbitration proceeding. In Patten et al. v. Johnson et al., No. 14-0433, a JAMS arbitrator issued an award in favor of Johnson over a business dispute with Patten. Later, that award was vacated due to an undisclosed relationship between the arbitrator and Johnson and a new arbitration was conducted. After Patten prevailed at the new arbitral hearing, he filed a complaint for fraud against Johnson, the law firm of Fish...
August 5, 2014
The Supreme Court of Texas declined to review a fraud case stemming from an arbitration proceeding. In Patten et al. v. Johnson et al., No. 14-0433, a JAMS arbitrator issued an award in favor of Johnson over a business dispute with Patten. Later, that award was vacated due to an undisclosed relationship between the arbitrator and Johnson and a new arbitration was conducted. After Patten prevailed at the new arbitral hearing, he filed a complaint for fraud against Johnson, the law firm of Fish...
