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Arbitration
Lessons Learned: Reports from Mock Arbitrations
June 3, 2014
Most of our work involves mock juror pretrial research and we have a report structure that feels very comfortable to us, easy to read, and easily searched by counsel. It took a few efforts with mock arbitrations to get to the same place though and here is some of what we’ve learned. Arbitrators are really smart people! Selecting the right mock arbitrators is not simple, and like other litigation research, the quality of the recruit is essential to a worthwhile effort. They need to have experience...
June 3, 2014
Most of our work involves mock juror pretrial research and we have a report structure that feels very comfortable to us, easy to read, and easily searched by counsel. It took a few efforts with mock arbitrations to get to the same place though and here is some of what we’ve learned. Arbitrators are really smart people! Selecting the right mock arbitrators is not simple, and like other litigation research, the quality of the recruit is essential to a worthwhile effort. They need to have experience...
Federal Cases Addressing Arbitrability Continue to Change the Landscape
June 2, 2014
The U.S. Supreme Court’s landmark decision last June in American Express v. Italian Colors, ___ U.S. __, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013), like its earlier decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011), solidified the broad deference given to arbitration agreements by the Supreme Court and reinforced the principle that state laws and policies invalidating arbitration agreements and class-action waivers are preempted by the Federal...
June 2, 2014
The U.S. Supreme Court’s landmark decision last June in American Express v. Italian Colors, ___ U.S. __, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013), like its earlier decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011), solidified the broad deference given to arbitration agreements by the Supreme Court and reinforced the principle that state laws and policies invalidating arbitration agreements and class-action waivers are preempted by the Federal...
California Court Holds that Arbitration “Delegation Clause” Is Not Unconscionable
May 30, 2014
In Tiri v. Lucky Chances, Inc. (5/15/14) --- Cal.App.4th ---, the Court held that an arbitration agreement may delegate...
May 30, 2014
In Tiri v. Lucky Chances, Inc. (5/15/14) --- Cal.App.4th ---, the Court held that an arbitration agreement may delegate...
Court Holds Arbitration Agreement Unconscionable and Unenforceable
May 29, 2014
In Carmona v. Lincoln Millennium Car Wash, Inc. (5/9/14) --- Cal.App.4th ---, the plaintiffs filed a putative wage and hour class action against their employers. The trial court denied the employers' motion to compel arbitration under a pre-dispute arbitration agreement, and the Court of Appeal affirmed, holding as follows: The arbitration agreement was procedurally unconscionable: (1) it was a contract of adhesion that was presented on a take-it-or-leave-it basis; and (2) although the plaintiffs...
May 29, 2014
In Carmona v. Lincoln Millennium Car Wash, Inc. (5/9/14) --- Cal.App.4th ---, the plaintiffs filed a putative wage and hour class action against their employers. The trial court denied the employers' motion to compel arbitration under a pre-dispute arbitration agreement, and the Court of Appeal affirmed, holding as follows: The arbitration agreement was procedurally unconscionable: (1) it was a contract of adhesion that was presented on a take-it-or-leave-it basis; and (2) although the plaintiffs...
Forcing the Forum: The Power of Forum Selection Clauses
May 29, 2014
Forum selection clauses—i.e., contractual provisions that designate a particular venue for litigation related to the contract—are ubiquitous and potentially powerful tools found in contracts ranging from divorce settlements to complex derivative instruments. And although forum selection clauses have always been a useful tool for both counsel and management looking to control and contain the cost of potential litigation, the U.S. Supreme Court’s recent decision in Atlantic Marine Construction...
May 29, 2014
Forum selection clauses—i.e., contractual provisions that designate a particular venue for litigation related to the contract—are ubiquitous and potentially powerful tools found in contracts ranging from divorce settlements to complex derivative instruments. And although forum selection clauses have always been a useful tool for both counsel and management looking to control and contain the cost of potential litigation, the U.S. Supreme Court’s recent decision in Atlantic Marine Construction...
No Retroactive Application to Arbitration Agreement Says Sixth Circuit
May 23, 2014
The Sixth Circuit held that an employee does not have to arbitrate a claim that was already pending in court when he entered...
May 23, 2014
The Sixth Circuit held that an employee does not have to arbitrate a claim that was already pending in court when he entered...
Judge Posner Sarcastically Applauds ‘New Form of Arbitration’ After Garner’s Expert Evaluates Tiff
May 22, 2014
Legal Times published Posner’s response in a second article. “Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.” “How beautifully that simplifies arbitration!” Posner continued. “No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list...
May 22, 2014
Legal Times published Posner’s response in a second article. “Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.” “How beautifully that simplifies arbitration!” Posner continued. “No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list...
Two Federal Circuits Find Health Insurance Claims Outside Scope of Arbitration Clauses
May 21, 2014
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and Third Circuits issued decisions holding that defendants could not compel arbitration because the plaintiffs’ claims fell outside the arbitration...
May 21, 2014
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and Third Circuits issued decisions holding that defendants could not compel arbitration because the plaintiffs’ claims fell outside the arbitration...
‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause
May 20, 2014
Gilt implemented its membership agreement using a standard mandatory clickthrough procedure with links to the actual terms. Citing Fteja v. Facebook, the court says: The question here is whether Starke is bound by the written terms of a transaction which he did not see or read, although he was aware that there were terms which governed his purchase, that he would be taken as having agreed to them by making the purchase, and that he could read them by one or two clicks of the mouse. Framed this...
May 20, 2014
Gilt implemented its membership agreement using a standard mandatory clickthrough procedure with links to the actual terms. Citing Fteja v. Facebook, the court says: The question here is whether Starke is bound by the written terms of a transaction which he did not see or read, although he was aware that there were terms which governed his purchase, that he would be taken as having agreed to them by making the purchase, and that he could read them by one or two clicks of the mouse. Framed this...
Rethinking the Arbitration Clause
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
May 19, 2014
We’ve discussed the ins and outs of arbitration at length previously. I’ve spent the last few years in a number of arbitration proceedings so in no particular order here are my recent thoughts on the process: 1. Speed. From start to finish there is no faster means to an end than arbitration. I always tell folks it is hard to go to trial, everything is stacked against it. In most cases you go once you are the oldest case meaning you are looking at 2 years before a trial. That means lots of starts...
