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Arbitration
As Predicted, SCOTUS Eliminates “Wholly Groundless” Exception
January 15, 2019
I called it. SCOTUS issued its unanimous opinion today in Henry Schein v. Archer & White, vacating and remanding the Fifth Circuit decision and making clear that there is no “wholly groundless” exception to the Federal Arbitration Act’s enforcement of delegation clauses. As you may recall, a circuit split had developed over the “wholly groundless” exception. Some circuits, including the Fifth, concluded that even when parties have delegated questions...
January 15, 2019
I called it. SCOTUS issued its unanimous opinion today in Henry Schein v. Archer & White, vacating and remanding the Fifth Circuit decision and making clear that there is no “wholly groundless” exception to the Federal Arbitration Act’s enforcement of delegation clauses. As you may recall, a circuit split had developed over the “wholly groundless” exception. Some circuits, including the Fifth, concluded that even when parties have delegated questions...
How To Calculate The Appeal Period From An Arbitration Award
January 14, 2019
Courtesy of the Ninth Circuit, we kick off 2019 with some fundamentals. The Federal Arbitration Act gives parties three months to petition to vacate an arbitration award. We know that “Three is the Magic Number,” but how exactly is a disappointed party supposed to calculate the three months? Section 12 of the FAA requires that a petition to vacate be served upon the adverse party “within three months after the award is filed or delivered.” In Stevens v. Jiffy Lube...
January 14, 2019
Courtesy of the Ninth Circuit, we kick off 2019 with some fundamentals. The Federal Arbitration Act gives parties three months to petition to vacate an arbitration award. We know that “Three is the Magic Number,” but how exactly is a disappointed party supposed to calculate the three months? Section 12 of the FAA requires that a petition to vacate be served upon the adverse party “within three months after the award is filed or delivered.” In Stevens v. Jiffy Lube...
Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example of (and Opportunity for) Dispute System Design
January 10, 2019
Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class...
January 10, 2019
Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class...
Biggest Arbitration Stories Of 2018
January 9, 2019
As we close out 2018, it is a good time to reflect on the year in arbitration law. Overall, I would characterize the year as another in which everyone was mildly obsessed with class actions, the U.S. Supreme Court again showed its willingness to enforce arbitration agreements of all kinds, and lower courts and groups of citizens attempted to resist the high court’s blind faith in arbitration with some success. Here are my thoughts on the biggest stories of the year: [read the link] Turning...
January 9, 2019
As we close out 2018, it is a good time to reflect on the year in arbitration law. Overall, I would characterize the year as another in which everyone was mildly obsessed with class actions, the U.S. Supreme Court again showed its willingness to enforce arbitration agreements of all kinds, and lower courts and groups of citizens attempted to resist the high court’s blind faith in arbitration with some success. Here are my thoughts on the biggest stories of the year: [read the link] Turning...
SCOTX Reverses Order Denying Arbitration in Dallas County Structured Settlement Transfer Case
January 9, 2019
On Friday, the Supreme Court of Texas reversed a lower court’s order denying a party’s motion to compel arbitration because a provision included in a structured settlement transfer agreement stated the question of arbitrability was one for an arbitrator to decide. In RSL Funding, LLC v. Newsome, No. 16-0998 (Tex., December 21, 2018), a man named Newsome received a structured settlement from an insurance company following a personal injury. Decades...
January 9, 2019
On Friday, the Supreme Court of Texas reversed a lower court’s order denying a party’s motion to compel arbitration because a provision included in a structured settlement transfer agreement stated the question of arbitrability was one for an arbitrator to decide. In RSL Funding, LLC v. Newsome, No. 16-0998 (Tex., December 21, 2018), a man named Newsome received a structured settlement from an insurance company following a personal injury. Decades...
SCOTUS: Under FAA, Court Must Enforce Agreement Requiring Arbitrator to Determine Whether Dispute Should be Decided in Arbitration
January 8, 2019
Holding: The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent. Judgment: Vacated and remanded, 9-0, in an opinion by Justice Kavanaugh on January 9, 2019.
January 8, 2019
Holding: The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent. Judgment: Vacated and remanded, 9-0, in an opinion by Justice Kavanaugh on January 9, 2019.
Standard for Arbitration Waiver
January 8, 2019
The Fifth Circuit found a waiver of the right to arbitrate in Forby v. One Technologies, finding as to the requirement of prejudice: “The district court erred in concluding that Forby failed to establish prejudice to her legal position. When a party will have to re-litigate in the arbitration forum an issue already decided by the district court in its favor, that party is prejudiced.” No.17-10883 (Nov. 28, 2018).
January 8, 2019
The Fifth Circuit found a waiver of the right to arbitrate in Forby v. One Technologies, finding as to the requirement of prejudice: “The district court erred in concluding that Forby failed to establish prejudice to her legal position. When a party will have to re-litigate in the arbitration forum an issue already decided by the district court in its favor, that party is prejudiced.” No.17-10883 (Nov. 28, 2018).
SCOTX Will Not Consider $16 Million Arbitration Award Arising Out of Energy Dispute
January 7, 2019
The Supreme Court of Texas declined to consider whether a Travis County trial court’s order confirming an arbitration award should be overturned because no transcription of the arbitration hearing was created. In Dixie Equipment, LLC v. Energia de Ramos, S.A.P.I. de C.V., No. 18-0901, the Third District Court of Appeals affirmed the trial court’s order confirming a $16 million arbitration award that was issued following a dispute between two energy companies. A detailed background...
January 7, 2019
The Supreme Court of Texas declined to consider whether a Travis County trial court’s order confirming an arbitration award should be overturned because no transcription of the arbitration hearing was created. In Dixie Equipment, LLC v. Energia de Ramos, S.A.P.I. de C.V., No. 18-0901, the Third District Court of Appeals affirmed the trial court’s order confirming a $16 million arbitration award that was issued following a dispute between two energy companies. A detailed background...
El Paso COA Rules on Pre-Arbitration Discovery in Mandamus Relief Case
January 4, 2019
The Eighth District Court of Appeals in El Paso has once again conditionally granted mandamus relief in an arbitration...
January 4, 2019
The Eighth District Court of Appeals in El Paso has once again conditionally granted mandamus relief in an arbitration...
Enforcement of Foreign Arbitration Agreements and Awards: Application of the New York Convention in the United States
December 30, 2018
International commercial arbitration provides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however,...
December 30, 2018
International commercial arbitration provides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however,...
