Arbitration
Fifth Circuit Shoots Down Statistics-Based Challenge to Arbitration
January 10, 2014
Plenty of litigants have tried—without success—to convince the U.S. Court of Appeals for the Fifth Circuit to let them out of arbitration agreements. Add Samantha Diggs to that list. The Fifth Circuit turned down her challenge to an arbitration agreement—a challenge in which she used statistics to allege that the American Arbitration System (AAA) is systematically "biased" against employees. After a trial court granted her former employer's motion to compel arbitration based on her employment...
January 10, 2014
Plenty of litigants have tried—without success—to convince the U.S. Court of Appeals for the Fifth Circuit to let them out of arbitration agreements. Add Samantha Diggs to that list. The Fifth Circuit turned down her challenge to an arbitration agreement—a challenge in which she used statistics to allege that the American Arbitration System (AAA) is systematically "biased" against employees. After a trial court granted her former employer's motion to compel arbitration based on her employment...
Furniture Dealer’s Arbitration Clause Just Veneer, Judge Says in Bias Case
January 8, 2014
Conflicting wording in Raymour & Flanigan's employee handbook has led a federal judge to refuse to enforce a provision calling for arbitration of workplace disputes. Chief U.S. District Judge Jerome Simandle in Camden, N.J., found that despite the arbitration clause, the handbook also contained language disclaiming creation of any employment contract. In addition, the company had reserved the right to change the handbook contents at any time without notice, rendering any agreement "illusory,"...
January 8, 2014
Conflicting wording in Raymour & Flanigan's employee handbook has led a federal judge to refuse to enforce a provision calling for arbitration of workplace disputes. Chief U.S. District Judge Jerome Simandle in Camden, N.J., found that despite the arbitration clause, the handbook also contained language disclaiming creation of any employment contract. In addition, the company had reserved the right to change the handbook contents at any time without notice, rendering any agreement "illusory,"...
The Easiest Arbitration Agreement to Avoid May Be the One Between Attorney and Client
January 7, 2014
The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements. Although the First Circuit found its way around the issue, the Ninth Circuit took it squarely on, holding that such requirements, at least as set forth by Washington state law, are not preempted by the FAA. In Bezio v. Draeger, __ F.3d __, No. 13-1910, 2013 WL 6570920 (1st Cir. Dec....
January 7, 2014
The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements. Although the First Circuit found its way around the issue, the Ninth Circuit took it squarely on, holding that such requirements, at least as set forth by Washington state law, are not preempted by the FAA. In Bezio v. Draeger, __ F.3d __, No. 13-1910, 2013 WL 6570920 (1st Cir. Dec....
Notable AAA Arbitration Rule Revisions in 2013
January 7, 2014
As others are reflecting on notable events in the past year, I think about the American Arbitration Association’s 2013 revisions to its arbitration rules, and what those revisions mean to arbitration. First, effective October 1, the AAA’s revised Commercial Arbitration Rules make several important changes to the arbitration process. All of the changes are summarized on the AAA’s website, but a few notable ones include: R-9: All arbitration claims exceeding $75,000 must be mediated...
January 7, 2014
As others are reflecting on notable events in the past year, I think about the American Arbitration Association’s 2013 revisions to its arbitration rules, and what those revisions mean to arbitration. First, effective October 1, the AAA’s revised Commercial Arbitration Rules make several important changes to the arbitration process. All of the changes are summarized on the AAA’s website, but a few notable ones include: R-9: All arbitration claims exceeding $75,000 must be mediated...
Sternlight: Tide Turning a Bit on Mandatory Arbitration Through Recognition that Process Suppresses Claims?
January 6, 2014
These have been very bleak times for those, like me, who abhor mandatory arbitration because they think it disserves consumers, employees, and others. In case after case such as AT&T Mobility v. Concepcion (2011) and American Express v. Italian Colors Restaurant (2013) the Supreme Court has given companies free rein to use arbitration to eviscerate class actions and to protect these clauses from challenge. Meanwhile, the efforts of some to convince Congress to stop the horror by passing...
January 6, 2014
These have been very bleak times for those, like me, who abhor mandatory arbitration because they think it disserves consumers, employees, and others. In case after case such as AT&T Mobility v. Concepcion (2011) and American Express v. Italian Colors Restaurant (2013) the Supreme Court has given companies free rein to use arbitration to eviscerate class actions and to protect these clauses from challenge. Meanwhile, the efforts of some to convince Congress to stop the horror by passing...
Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds for Vacating Award
January 6, 2014
In the Hall Street decision in 2008, SCOTUS held that parties could not contractuallyenlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section. This week, the Ninth Circuit held that parties also cannot contractually restrict Section 10 by providing for “binding, non-appealable arbitration.” In re Wal-Mart Wage and Hour Employment Practices Litig., __ F.3d __, 2013 WL 6605350 (9th Cir. Dec....
January 6, 2014
In the Hall Street decision in 2008, SCOTUS held that parties could not contractuallyenlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section. This week, the Ninth Circuit held that parties also cannot contractually restrict Section 10 by providing for “binding, non-appealable arbitration.” In re Wal-Mart Wage and Hour Employment Practices Litig., __ F.3d __, 2013 WL 6605350 (9th Cir. Dec....
Labor & Employment Year in Review 2013: Arbitration
December 31, 2013
As 2013 draws to a close, it’s an ideal time to reflect on what has come to pass in the in-house legal world this year, and look forward to what’s coming up in the next. When asked what they are thinking about on the occasion of the new year, labor and employment attorneys told CorpCounsel.com that there is plenty on their minds, from wage and hour cases, to an emboldened National Labor Relations Board, to the Americans with Disabilities Act. However one of the most commonly cited topics of all was arbitration...
December 31, 2013
As 2013 draws to a close, it’s an ideal time to reflect on what has come to pass in the in-house legal world this year, and look forward to what’s coming up in the next. When asked what they are thinking about on the occasion of the new year, labor and employment attorneys told CorpCounsel.com that there is plenty on their minds, from wage and hour cases, to an emboldened National Labor Relations Board, to the Americans with Disabilities Act. However one of the most commonly cited topics of all was arbitration...
Applebee’s Squelches Class Action Through Arbitration Clause
December 30, 2013
Despite expressing serious reservations, a federal judge in Philadelphia has enforced an arbitration clause between an employee and Applebee's, foreclosing the waiter from bringing his claim as a class action. U.S. District Senior Judge Berle Schiller of the Eastern District of Pennsylvania said he is bound by precedent to enforce the arbitration agreement. In his opinion, however, Schiller agreed with the plaintiff that the contract requiring him to resolve any claims he has against Applebee's...
December 30, 2013
Despite expressing serious reservations, a federal judge in Philadelphia has enforced an arbitration clause between an employee and Applebee's, foreclosing the waiter from bringing his claim as a class action. U.S. District Senior Judge Berle Schiller of the Eastern District of Pennsylvania said he is bound by precedent to enforce the arbitration agreement. In his opinion, however, Schiller agreed with the plaintiff that the contract requiring him to resolve any claims he has against Applebee's...
Arbitral Autonomy
December 27, 2013
Ali Khan, Professor of Law at Washburn University School of Law, has published an interesting article entitled, Arbitral Autonomy, Louisiana Law Review, Vol. 74, No. 2, 2013. In his paper, Professor Khan discusses the need to minimize court challenges to arbitration in order to successfully achieve arbitral autonomy. Here is the abstract: This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement...
December 27, 2013
Ali Khan, Professor of Law at Washburn University School of Law, has published an interesting article entitled, Arbitral Autonomy, Louisiana Law Review, Vol. 74, No. 2, 2013. In his paper, Professor Khan discusses the need to minimize court challenges to arbitration in order to successfully achieve arbitral autonomy. Here is the abstract: This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement...
Arbitration Clause Applies to Legal Malpractice Claim
December 27, 2013
Maine law firm Bernstein, Shur, Sawyer & Nelson’s contract requiring a former client to arbitrate all claims applies to malpractice claims, the U.S. Court of Appeals for the First Circuit has ruled. In Bezio v. Draeger, the court on Monday affirmed U.S. District Court Judge Nancy Torresen’s July 2013 dismissal of the case. According to court records, Douglas Bezio hired Bernstein Shur to defend him in an action brought by the Maine Office of Securities. His contract with the firm held...
December 27, 2013
Maine law firm Bernstein, Shur, Sawyer & Nelson’s contract requiring a former client to arbitrate all claims applies to malpractice claims, the U.S. Court of Appeals for the First Circuit has ruled. In Bezio v. Draeger, the court on Monday affirmed U.S. District Court Judge Nancy Torresen’s July 2013 dismissal of the case. According to court records, Douglas Bezio hired Bernstein Shur to defend him in an action brought by the Maine Office of Securities. His contract with the firm held...
