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Arbitration
In Walmart Fee Fight, Ninth Circuit Balks at ‘Non-Appealable’ Arbitration
December 26, 2013
Two Bay Area plaintiff lawyers have won an arbitration battle but lost a bitter $28 million fee war. The U.S. Court of Appeals for the Ninth Circuit ruled Tuesday that Carolyn Burton and Robert Mills may challenge the allocation of legal fees in multidistrict litigation against Walmart, even though they had previously agreed to "non-appealable" arbitration. "Permitting parties to contractually eliminate all judicial review of arbitration awards would not only run counter to the text" of the Federal...
December 26, 2013
Two Bay Area plaintiff lawyers have won an arbitration battle but lost a bitter $28 million fee war. The U.S. Court of Appeals for the Ninth Circuit ruled Tuesday that Carolyn Burton and Robert Mills may challenge the allocation of legal fees in multidistrict litigation against Walmart, even though they had previously agreed to "non-appealable" arbitration. "Permitting parties to contractually eliminate all judicial review of arbitration awards would not only run counter to the text" of the Federal...
Fifth Circuit Holds Class Arbitration Waivers Do Not Violate the NLRA
December 26, 2013
The Fifth Circuit has ruled that employers may require workers to resolve employment disputes through individual arbitration. In D.R. Horton, Inc. v. N.L.R.B., No. 12-60031 (5th Cir. December 3, 2013), a superintendent for home builder D.R. Horton, Michael Cuda, signed a mutual arbitration agreement (Agreement) that barred class action or collective claims as a condition of his continued employment. Two years after Cuda’s employment at D.R. Horton ended, he sought to initiate class arbitration proceedings...
December 26, 2013
The Fifth Circuit has ruled that employers may require workers to resolve employment disputes through individual arbitration. In D.R. Horton, Inc. v. N.L.R.B., No. 12-60031 (5th Cir. December 3, 2013), a superintendent for home builder D.R. Horton, Michael Cuda, signed a mutual arbitration agreement (Agreement) that barred class action or collective claims as a condition of his continued employment. Two years after Cuda’s employment at D.R. Horton ended, he sought to initiate class arbitration proceedings...
Texas Supreme Court Agrees to Consider What Constitutes Arbitrator Evident Partiality
December 23, 2013
The Supreme Court of Texas has agreed to consider whether an arbitration award in a dispute between two energy companies should be upheld. In Tenaska Energy Inc. et al. v. Ponderosa Pine Energy LLC, No. 12-0789, Ponderosa sought $200 million from Tenaska over a breached power plant purchase agreement. The parties engaged in arbitration before a three-member panel and Ponderosa was awarded $125 million. Following arbitration, Ponderosa sought to confirm the panel’s award. Tenaska...
December 23, 2013
The Supreme Court of Texas has agreed to consider whether an arbitration award in a dispute between two energy companies should be upheld. In Tenaska Energy Inc. et al. v. Ponderosa Pine Energy LLC, No. 12-0789, Ponderosa sought $200 million from Tenaska over a breached power plant purchase agreement. The parties engaged in arbitration before a three-member panel and Ponderosa was awarded $125 million. Following arbitration, Ponderosa sought to confirm the panel’s award. Tenaska...
S.D. Texas Compels Wireless Telephone Franchise Dispute to Arbitration
December 20, 2013
The Southern District of Texas has compelled a contract dispute over the operation of a number of wireless telephone stores...
December 20, 2013
The Southern District of Texas has compelled a contract dispute over the operation of a number of wireless telephone stores...
The Federalization of Consumer Arbitration: Possible Solutions
December 19, 2013
Sarah Rudolph Cole, John W. Bricker Professor of Law and Director of the Program on Dispute Resolution at the Ohio State University’s Moritz College of Law has authored The Federalization of Consumer Arbitration: Possible Solutions. In her paper, Professor Cole discusses the United States Supreme Court’s recent arbitration jurisprudence and its effect on state law. Here is the abstract: Over the past fifteen to twenty years, businesses dramatically increased the use of arbitration clauses...
December 19, 2013
Sarah Rudolph Cole, John W. Bricker Professor of Law and Director of the Program on Dispute Resolution at the Ohio State University’s Moritz College of Law has authored The Federalization of Consumer Arbitration: Possible Solutions. In her paper, Professor Cole discusses the United States Supreme Court’s recent arbitration jurisprudence and its effect on state law. Here is the abstract: Over the past fifteen to twenty years, businesses dramatically increased the use of arbitration clauses...
Back to Basics: Global Companies Sign Pledge to Bring Mediation into the Heart of Business Practice
December 18, 2013
Mediation has long been underused as a form of dispute resolution. Now, however, dozens of global companies have signed a pledge to bring it into the heart of business practice. In-House Perspective's Rebecca Lowe talks to lawyers determined to go back to basics. Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded...
December 18, 2013
Mediation has long been underused as a form of dispute resolution. Now, however, dozens of global companies have signed a pledge to bring it into the heart of business practice. In-House Perspective's Rebecca Lowe talks to lawyers determined to go back to basics. Once upon a time, men arguably wiser and more sensible than those of the present era settled their disputes by sitting down together in a civilised fashion and talking until the problem was solved. No courts, no judges, no longwinded...
Concepcion Gives No Easy Out to Lawyers in Client Disputes
December 18, 2013
The U.S. Supreme Court's 2011 blockbuster AT&T Mobility v. Concepcion has helped telecom companies, financial institutions, nursing homes and others force more cases into arbitration. But it may not have the same benefit for lawyers facing suits by their clients, at least within the Ninth Circuit. The appellate court ruled Thursday that the Federal Arbitration Act, as interpreted by Concepcion, does not preempt state unconscionability laws that require attorneys to fully and fairly...
December 18, 2013
The U.S. Supreme Court's 2011 blockbuster AT&T Mobility v. Concepcion has helped telecom companies, financial institutions, nursing homes and others force more cases into arbitration. But it may not have the same benefit for lawyers facing suits by their clients, at least within the Ninth Circuit. The appellate court ruled Thursday that the Federal Arbitration Act, as interpreted by Concepcion, does not preempt state unconscionability laws that require attorneys to fully and fairly...
Appeals Court Ponders Arbitration of Legal Malpractice Claim
December 17, 2013
A federal appeals court weighed whether a law firm can keep a client’s malpractice claim out of court if the two sides have a contract calling for arbitration of all disputes. On Monday, the U.S. Court of Appeals for the First Circuit heard Douglas Bezio’s appeal of a Maine federal judge’s dismissal of his case against Portland, Maine-based Bernstein, Shur, Sawyer & Nelson and three of its lawyers. Bezio hired Bernstein Shur for a case involving a regulatory dispute with the state...
December 17, 2013
A federal appeals court weighed whether a law firm can keep a client’s malpractice claim out of court if the two sides have a contract calling for arbitration of all disputes. On Monday, the U.S. Court of Appeals for the First Circuit heard Douglas Bezio’s appeal of a Maine federal judge’s dismissal of his case against Portland, Maine-based Bernstein, Shur, Sawyer & Nelson and three of its lawyers. Bezio hired Bernstein Shur for a case involving a regulatory dispute with the state...
Fourth Circuit Avoids Choosing Between “Chevron” Deference to Regulatory Agency and Pro-Arbitration FAA Policy
December 17, 2013
The US Court of Appeals for the Fourth Circuit in Seney v. Rent-a-Center, Inc. (No. 13-1064, 4th Cir., Dec. 11. 2013) avoided deciding whether Federal agency regulatory limits on pre-dispute arbitration agreements for consumer warranty disputes, promulgated by the US Federal Trade Commission (FTC) under the general authority of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the “MMWA”), are consistent with US Federal Arbitration Act (FAA) pro-arbitration jurisprudence. The Court...
December 17, 2013
The US Court of Appeals for the Fourth Circuit in Seney v. Rent-a-Center, Inc. (No. 13-1064, 4th Cir., Dec. 11. 2013) avoided deciding whether Federal agency regulatory limits on pre-dispute arbitration agreements for consumer warranty disputes, promulgated by the US Federal Trade Commission (FTC) under the general authority of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the “MMWA”), are consistent with US Federal Arbitration Act (FAA) pro-arbitration jurisprudence. The Court...
Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration
December 16, 2013
After three federal circuits had already refused to defer to the NLRB’s decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB’s critical holding: that precluding class arbitrations is a violation of federal labor law. D.R. Horton, Inc. v. Nat’l Labor Relations Bd., __ F.3d __, 2013 WL 6231617 (5th Cir. Dec. 4, 2013). D.R. Horton builds homes in many states. Starting in 2006, its employees had to sign a Mutual Arbitration Agreement. The MAA called...
December 16, 2013
After three federal circuits had already refused to defer to the NLRB’s decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB’s critical holding: that precluding class arbitrations is a violation of federal labor law. D.R. Horton, Inc. v. Nat’l Labor Relations Bd., __ F.3d __, 2013 WL 6231617 (5th Cir. Dec. 4, 2013). D.R. Horton builds homes in many states. Starting in 2006, its employees had to sign a Mutual Arbitration Agreement. The MAA called...
