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Arbitration
Court Rejects Defenses to Arbitration by Non-Signatory and Appoints Umpire
October 2, 2013
In a decision granting a workers’ compensation insurer’s petition to appoint an umpire and proceed with arbitration, a court recently analyzed and rejected a number of defenses to arbitration made by the two affiliated company respondents. The court considered whether one of the companies, a non-signatory to the underlying agreement, could be compelled to arbitrate. Applying principles of actual and apparent agency, the court found that the signatory had authority to obtain insurance for the non-signatory...
October 2, 2013
In a decision granting a workers’ compensation insurer’s petition to appoint an umpire and proceed with arbitration, a court recently analyzed and rejected a number of defenses to arbitration made by the two affiliated company respondents. The court considered whether one of the companies, a non-signatory to the underlying agreement, could be compelled to arbitrate. Applying principles of actual and apparent agency, the court found that the signatory had authority to obtain insurance for the non-signatory...
The Not-So-Effective Vindication Decision
October 1, 2013
Professor Linda S. Mullenix, Morris & Rita Atlas Chair in Advocacy at the University of Texas School of Law, has published, The Practice: The Not-So-Effective Vindication Decision: The U.S. Supreme Court’s Ruling in Italian Colors and Its Aftermath Are a Big Blow to Class Action Bar, National Law Journal, Vol. 36, No. 2, p. 30, September 2013; U of Texas Law, Public Law Research Paper No. 517. In her article, Professor Mullenix discusses the far-reaching effect of the United States Supreme...
October 1, 2013
Professor Linda S. Mullenix, Morris & Rita Atlas Chair in Advocacy at the University of Texas School of Law, has published, The Practice: The Not-So-Effective Vindication Decision: The U.S. Supreme Court’s Ruling in Italian Colors and Its Aftermath Are a Big Blow to Class Action Bar, National Law Journal, Vol. 36, No. 2, p. 30, September 2013; U of Texas Law, Public Law Research Paper No. 517. In her article, Professor Mullenix discusses the far-reaching effect of the United States Supreme...
Denial of Arbitration of Stop-Loss Insurance Dispute Affirmed Under State Law
October 1, 2013
The president of a corporate administrator of a trust appealed the denial of his motion to compel arbitration against a company that sued him individually in a case seeking benefits and other relief for disputed medical stop-loss coverage. The appellate court initially held that, although the president was a non-signatory to the underlying agreements, the president could enforce the arbitration provisions based on agency and the plaintiff’s allegations, which treated the president and his corporation...
October 1, 2013
The president of a corporate administrator of a trust appealed the denial of his motion to compel arbitration against a company that sued him individually in a case seeking benefits and other relief for disputed medical stop-loss coverage. The appellate court initially held that, although the president was a non-signatory to the underlying agreements, the president could enforce the arbitration provisions based on agency and the plaintiff’s allegations, which treated the president and his corporation...
How Shall We Prove Arbitral Corruption With “Abundant Clarity”?
September 30, 2013
Shall we applaud, or regret, the latest decision from a panel in the US Second Circuit Court of Appeals concerning the quality of proof needed to vacate an international arbitration award for “evident partiality or corruption”? (Kohel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, No. 12-3247-CV (2d Cir. Aug. 30, 2013). Shall we applaud the fact that an arbitral award survived a motion to vacate by the losing side, and see this as another heartening judicial vindication of the arbitral...
September 30, 2013
Shall we applaud, or regret, the latest decision from a panel in the US Second Circuit Court of Appeals concerning the quality of proof needed to vacate an international arbitration award for “evident partiality or corruption”? (Kohel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, No. 12-3247-CV (2d Cir. Aug. 30, 2013). Shall we applaud the fact that an arbitral award survived a motion to vacate by the losing side, and see this as another heartening judicial vindication of the arbitral...
Northern District of Texas Compels Wrongful Death of Employee Case to Arbitration
September 30, 2013
The Northern District of Texas has compelled a lawsuit that was filed following a workplace-related death to arbitration. In Estate of Juan Benitez v. Sears, Roebuck and Co., et al., No. 3:13-CV-0468-D (N.D. Tex. August 14, 2013), the family of a deceased general maintenance worker, Benitez, filed a wrongful death lawsuit against Sears, Roebuck and Co. (“Sears”). As a condition of the Spanish-speaking man’s employment, Benitez was required to view a presentation and watch a DVD related...
September 30, 2013
The Northern District of Texas has compelled a lawsuit that was filed following a workplace-related death to arbitration. In Estate of Juan Benitez v. Sears, Roebuck and Co., et al., No. 3:13-CV-0468-D (N.D. Tex. August 14, 2013), the family of a deceased general maintenance worker, Benitez, filed a wrongful death lawsuit against Sears, Roebuck and Co. (“Sears”). As a condition of the Spanish-speaking man’s employment, Benitez was required to view a presentation and watch a DVD related...
The Supreme Court’s New Arbitrability Options
September 27, 2013
An enduring issue in U.S. jurisprudence has been the difficulty of determining when a court, rather than an arbitral tribunal, should make the initial decision on whether the arbitrators have the authority to hear a dispute. Although the Supreme Court has provided general guidance on this “gateway” question in a few cases, there has been substantial room for lower court judges to fashion an array of arbitrability rulings. The tendency has been to favor the arbitrators as the first stop, drawing...
September 27, 2013
An enduring issue in U.S. jurisprudence has been the difficulty of determining when a court, rather than an arbitral tribunal, should make the initial decision on whether the arbitrators have the authority to hear a dispute. Although the Supreme Court has provided general guidance on this “gateway” question in a few cases, there has been substantial room for lower court judges to fashion an array of arbitrability rulings. The tendency has been to favor the arbitrators as the first stop, drawing...
Class Action Waiver Provisions Enforceable in Second Circuit Post-Amex
September 27, 2013
In back-to-back opinions addressing wage disputes brought under the Fair Labor Standards Act, the Second Circuit reversed the district court’s orders denying defendants’ motions to compel arbitration. In so doing, the Second Circuit explicitly followed the Supreme Court’s holding in American Express Co. v. Italian Colors Restaurant that plaintiffs cannot use the “effective vindication doctrine” to invalidate class action waiver provisions by showing that their claim is not economically...
September 27, 2013
In back-to-back opinions addressing wage disputes brought under the Fair Labor Standards Act, the Second Circuit reversed the district court’s orders denying defendants’ motions to compel arbitration. In so doing, the Second Circuit explicitly followed the Supreme Court’s holding in American Express Co. v. Italian Colors Restaurant that plaintiffs cannot use the “effective vindication doctrine” to invalidate class action waiver provisions by showing that their claim is not economically...
The Arbitrator’s Power of Suggestion
September 26, 2013
One of the least discussed powers of the Arbitral Tribunal is the power of suggestion. Professor Piero Bernardini, a well-reputed continental arbitrator and scholar, has described the arbitrator’s task in achieving an efficient process as “a balance between ‘proactive and judicious efforts’ to move proceedings forward in an efficient manner while at the same time ensuring respect for party autonomy and equality.” Volumes have been written about arbitral efficiency and party autonomy...
September 26, 2013
One of the least discussed powers of the Arbitral Tribunal is the power of suggestion. Professor Piero Bernardini, a well-reputed continental arbitrator and scholar, has described the arbitrator’s task in achieving an efficient process as “a balance between ‘proactive and judicious efforts’ to move proceedings forward in an efficient manner while at the same time ensuring respect for party autonomy and equality.” Volumes have been written about arbitral efficiency and party autonomy...
Roundup of Motions to Compel Involving Non-Signatories to Arbitration Agreements
September 26, 2013
Michael Wolgin of Jorden Burt LLP has compiled a useful roundup of recent motions to compel involving non-signatories to arbitration agreements: Four recent decisions considered whether to compel arbitration in the context of non-signatories and multiple agreements and claims. The decisions highlight different doctrines relevant to this analysis, including equitable estoppel, third-party beneficiary, and agency principals. Murphy v. DirecTV, Inc., No. 11-57163 (9th Cir. July 30, 2013) (reversing...
September 26, 2013
Michael Wolgin of Jorden Burt LLP has compiled a useful roundup of recent motions to compel involving non-signatories to arbitration agreements: Four recent decisions considered whether to compel arbitration in the context of non-signatories and multiple agreements and claims. The decisions highlight different doctrines relevant to this analysis, including equitable estoppel, third-party beneficiary, and agency principals. Murphy v. DirecTV, Inc., No. 11-57163 (9th Cir. July 30, 2013) (reversing...
Round-Up Of Federal Decisions Involving Questions of Arbitrability
September 25, 2013
Mortensen v. Bresnan Communications, LLC, No. 11-35823 (9th Cir. July 15, 2013) (vacating district court order declining...
September 25, 2013
Mortensen v. Bresnan Communications, LLC, No. 11-35823 (9th Cir. July 15, 2013) (vacating district court order declining...
