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Arbitration
The McCarran-Ferguson Act and Reverse Preemption Part III
April 18, 2014
As prior discussion suggests, a mechanism for avoiding the preemptive effect of the FAA on state insurance law is found in the McCarran-Ferguson Act, which provides for reverse preemption of federal law by state insurance law in the following manner: No Act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance . . . .[1] In...
April 18, 2014
As prior discussion suggests, a mechanism for avoiding the preemptive effect of the FAA on state insurance law is found in the McCarran-Ferguson Act, which provides for reverse preemption of federal law by state insurance law in the following manner: No Act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance . . . .[1] In...
The McCarran-Ferguson Act and Reverse Preemption Part II
April 18, 2014
Arbitration in the United States, in some shape or form, has been around since the early 20th century.[1]Incorporating both...
April 18, 2014
Arbitration in the United States, in some shape or form, has been around since the early 20th century.[1]Incorporating both...
The McCarran-Ferguson Act and Reverse Preemption Part I
April 18, 2014
This paper discusses the McCarran-Ferguson Act generally, the Federal Arbitration Act (“FAA”) generally, and the reverse preemption of the FAA via the McCarran-Ferguson Act specifically. Reverse preemption of the FAA via the McCarran-Ferguson Act sounds facially confusing at the outset. In order to better understand and flesh-out reverse preemption of the FAA via the McCarran-Ferguson Act, two case studies are presented, namely: one case study finding reverse preemption of the FAA via the McCarran-Ferguson...
April 18, 2014
This paper discusses the McCarran-Ferguson Act generally, the Federal Arbitration Act (“FAA”) generally, and the reverse preemption of the FAA via the McCarran-Ferguson Act specifically. Reverse preemption of the FAA via the McCarran-Ferguson Act sounds facially confusing at the outset. In order to better understand and flesh-out reverse preemption of the FAA via the McCarran-Ferguson Act, two case studies are presented, namely: one case study finding reverse preemption of the FAA via the McCarran-Ferguson...
Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails
April 17, 2014
In the past year, if I wrote about “FLSA” and “arbitration” in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act. Today, however, is different. The Eleventh Circuit last week found that it was the FLSA that gave the district court sufficient “managerial responsibility” over workers’ collective actions to override an employer’s coercive,...
April 17, 2014
In the past year, if I wrote about “FLSA” and “arbitration” in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act. Today, however, is different. The Eleventh Circuit last week found that it was the FLSA that gave the district court sufficient “managerial responsibility” over workers’ collective actions to override an employer’s coercive,...
Arbitration Clauses Survive Their Contracts 99% Of The Time
April 16, 2014
The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it? I usually say yes, and thankfully the Sixth Circuit backed me up. In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a class of employees alleged FLSA violations by their employer. Each of their employment agreements had an arbitration clause and a “survival clause” which listed a few of the contractual...
April 16, 2014
The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it? I usually say yes, and thankfully the Sixth Circuit backed me up. In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a class of employees alleged FLSA violations by their employer. Each of their employment agreements had an arbitration clause and a “survival clause” which listed a few of the contractual...
Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability
April 15, 2014
In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week:...
April 15, 2014
In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week:...
Using Arbitration Clauses in Class Action Settlements
April 9, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
April 9, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
California Court Rules on Mandatory Arbitration Clauses in Trusts
April 9, 2014
There are not many jurisdictions that have weighed in on the issue of whether arbitration clauses should be mandatory in trusts....
April 9, 2014
There are not many jurisdictions that have weighed in on the issue of whether arbitration clauses should be mandatory in trusts....
Using Arbitration Clauses in Class Action Settlements
April 8, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
April 8, 2014
Corporations frequently rely on arbitration clauses in contracts to expediently resolve disputes, cut down litigation costs, preserve relationships with business partners and customers, and keep proprietary information private. However, despite their prevalence in other types of contracts, companies rarely use arbitration clauses in class action settlement agreements in California. For many companies, that may be a missed opportunity. The absence of arbitration clauses in class settlements may stem...
Retired Judges, Openness Among Possibilities for Chancery Arbitration
April 7, 2014
The Delaware Court of Chancery is said to be mulling options to revive its confidential arbitration program after the U.S. Supreme Court denied the Chancery Court's certiorari petition, effectively ending the program. Corporate law experts said the program is worth saving and that only a few minor tweaks could make Chancery Court arbitration compliant with federal law. "There is a big move in favor of arbitration, particularly among multinational corporations," said Jill E. Fisch, a corporate...
April 7, 2014
The Delaware Court of Chancery is said to be mulling options to revive its confidential arbitration program after the U.S. Supreme Court denied the Chancery Court's certiorari petition, effectively ending the program. Corporate law experts said the program is worth saving and that only a few minor tweaks could make Chancery Court arbitration compliant with federal law. "There is a big move in favor of arbitration, particularly among multinational corporations," said Jill E. Fisch, a corporate...
