Arbitration
Houston COA Holds Trial Court Inappropriately Modified Arbitrator’s Decision Regarding Joint and Several Liability
August 30, 2013
Texas’ 14th District Court of Appeals in Houston has amended a trial court’s judgment that modified an arbitrator’s decision. In Broemer v. Houston Lawyer Referral Service, No. 14-12-00337-CV, (Tex. App. – Houston [14th Dist.], July 25, 2013), Houston Lawyer Referral Service (“HLRS”) referred three lawsuits to an attorney named Roslyn Bazzelle. When the firm at which Bazelle was employed closed, she took the cases with her to her new position at W. Fulton Broemer & Associates,...
August 30, 2013
Texas’ 14th District Court of Appeals in Houston has amended a trial court’s judgment that modified an arbitrator’s decision. In Broemer v. Houston Lawyer Referral Service, No. 14-12-00337-CV, (Tex. App. – Houston [14th Dist.], July 25, 2013), Houston Lawyer Referral Service (“HLRS”) referred three lawsuits to an attorney named Roslyn Bazzelle. When the firm at which Bazelle was employed closed, she took the cases with her to her new position at W. Fulton Broemer & Associates,...
Oxford Health and Manifest Disregard, Part II.C
August 29, 2013
Part II.C: Does Oxford Portend Judicial Reconsideration of Whether Class-Arbitration Consent is a Question of Arbitrability? In Stolt-Nielsen and Oxford the parties voluntarily submitted the class-arbitration-consent question to arbitrators because a four-Justice plurality ruled in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), that the class-arbitration-consent issue was not a question of arbitrability for the court to decide. While “courts assume that the parties...
August 29, 2013
Part II.C: Does Oxford Portend Judicial Reconsideration of Whether Class-Arbitration Consent is a Question of Arbitrability? In Stolt-Nielsen and Oxford the parties voluntarily submitted the class-arbitration-consent question to arbitrators because a four-Justice plurality ruled in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), that the class-arbitration-consent issue was not a question of arbitrability for the court to decide. While “courts assume that the parties...
The Federal Arbitration Act and Displacement of Agency Regulation
August 29, 2013
Maureen Weston, Professor of Law at Pepperdine University School of Law, has published a timely article entitled, The Accidental Preemption Statute: The Federal Arbitration Act and Displacement of Agency Regulation, 6 Penn. St. Y.B. on Arb. & Mediation 59 (2013); Pepperdine University Legal Studies Research Paper No. 2013/15. In her paper, Professor Weston examines the dichotomy between the Federal Arbitration Act and the regulatory procedures used by federal agencies. Here is the abstract: The...
August 29, 2013
Maureen Weston, Professor of Law at Pepperdine University School of Law, has published a timely article entitled, The Accidental Preemption Statute: The Federal Arbitration Act and Displacement of Agency Regulation, 6 Penn. St. Y.B. on Arb. & Mediation 59 (2013); Pepperdine University Legal Studies Research Paper No. 2013/15. In her paper, Professor Weston examines the dichotomy between the Federal Arbitration Act and the regulatory procedures used by federal agencies. Here is the abstract: The...
Oxford Health and Manifest Disregard, Part II.B
August 28, 2013
Part II.B: To what Extent, if at all, will Oxford Likely Influence FAA Law and Practice? While Oxford is uncontroversial in the sense that it does not purport to change the standard of review applicable to Federal-Arbitration-Act (“FAA”)-governed arbitration awards, it will likely influence FAA arbitration law and practice concerning the judicial review of arbitration awards under FAA Section 10(a)(4) in at least three ways. First, it should dissipate significantly any lingering confusion...
August 28, 2013
Part II.B: To what Extent, if at all, will Oxford Likely Influence FAA Law and Practice? While Oxford is uncontroversial in the sense that it does not purport to change the standard of review applicable to Federal-Arbitration-Act (“FAA”)-governed arbitration awards, it will likely influence FAA arbitration law and practice concerning the judicial review of arbitration awards under FAA Section 10(a)(4) in at least three ways. First, it should dissipate significantly any lingering confusion...
Fifth Circuit Affirms Order Despite Alleged Arbitrator Misconduct
August 28, 2013
In an unpublished opinion, the United States Fifth Circuit Court of Appeals has affirmed a lower court’s refusal to vacate an arbitration award and reopen a case despite alleged arbitrator misconduct. In Bain Cotton Company v. Chesnutt Cotton Company, No. 12-11138, (5th Cir. June 24, 2013), Bain Cotton Company engaged in arbitral proceedings with Chesnutt Cotton Company. During arbitration, an arbitral panel denied a number of Bain’s discovery requests and apparently evidenced partiality...
August 28, 2013
In an unpublished opinion, the United States Fifth Circuit Court of Appeals has affirmed a lower court’s refusal to vacate an arbitration award and reopen a case despite alleged arbitrator misconduct. In Bain Cotton Company v. Chesnutt Cotton Company, No. 12-11138, (5th Cir. June 24, 2013), Bain Cotton Company engaged in arbitral proceedings with Chesnutt Cotton Company. During arbitration, an arbitral panel denied a number of Bain’s discovery requests and apparently evidenced partiality...
Loree on Oxford Health, Part II
August 27, 2013
Part II.A: What to Make of Oxford? In our last post (here) we discussed the U.S. Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. (U.S. June 10, 2013), which, among other things, reaffirmed that Section 10(a)(4) of the Federal Arbitration Act (“FAA”) authorizes judicial review of FAA-governed-arbitration-award outcomes based on the labor-arbitration-derived “manifest disregard of the agreement” standard. This post, which has been divided...
August 27, 2013
Part II.A: What to Make of Oxford? In our last post (here) we discussed the U.S. Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. (U.S. June 10, 2013), which, among other things, reaffirmed that Section 10(a)(4) of the Federal Arbitration Act (“FAA”) authorizes judicial review of FAA-governed-arbitration-award outcomes based on the labor-arbitration-derived “manifest disregard of the agreement” standard. This post, which has been divided...
Houston’s First COA Upholds Arbitral Award Where Parties Signed Competing Agreements
August 27, 2013
Houston’s First District Court of Appeals has upheld an arbitrator’s award in a dispute that arose between an employer and a worker who was hurt on-the-job. In Forged Components, Inc. v. Guzman, No. 01–11–00563–CV, (Tex. App. Dist. 1 – June 25, 2013), Ricky Guzman was pinned by a forklift while working at Forged Components, Inc. (“FCI”). As a result, Guzman was hospitalized for nearly one month. At the time of Guzman’s injury, the company was not a subscriber under the Texas...
August 27, 2013
Houston’s First District Court of Appeals has upheld an arbitrator’s award in a dispute that arose between an employer and a worker who was hurt on-the-job. In Forged Components, Inc. v. Guzman, No. 01–11–00563–CV, (Tex. App. Dist. 1 – June 25, 2013), Ricky Guzman was pinned by a forklift while working at Forged Components, Inc. (“FCI”). As a result, Guzman was hospitalized for nearly one month. At the time of Guzman’s injury, the company was not a subscriber under the Texas...
First State Court Decision Is Reversed Under SCOTUS’ Amex Ruling
August 26, 2013
Put this post in the “I called it” category. On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration. On June 20, the U.S. Supreme Court decided American Express, holding that arbitration agreements must be enforced according to their terms under the Federal Arbitration Act, even if it means that low-dollar claims will not be prosecuted. ...
August 26, 2013
Put this post in the “I called it” category. On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration. On June 20, the U.S. Supreme Court decided American Express, holding that arbitration agreements must be enforced according to their terms under the Federal Arbitration Act, even if it means that low-dollar claims will not be prosecuted. ...
Arbitration Clauses That Avoid Arbitrability Disputes
August 26, 2013
It is very common to draft an arbitration clause to apply only to certain types of disputes—but usually a mistake to do so. If the parties want arbitration for certain issues, they would be well advised to consider arbitration for all of them. A typical “limited subject matter” arbitration clause might read: “Any controversy or claim arising out of or relating to this contract or the breach thereof that concerns [tax obligations, intellectual property rights, employment issues, purchase...
August 26, 2013
It is very common to draft an arbitration clause to apply only to certain types of disputes—but usually a mistake to do so. If the parties want arbitration for certain issues, they would be well advised to consider arbitration for all of them. A typical “limited subject matter” arbitration clause might read: “Any controversy or claim arising out of or relating to this contract or the breach thereof that concerns [tax obligations, intellectual property rights, employment issues, purchase...
A Rose by Any Other Name
August 23, 2013
Most of the leading law school textbooks explain arbitration by describing a case where a party suffers a loss and there is a dispute between the insurance company and the insured. The insured typically places a high value on the subject of the loss, while the insurance company places a lower value. A third party is called in to offer an opinion about the value of the loss and the parties agree to be bound by that third party’s opinion. Sometimes the parties each choose an appraiser and the two appraisers...
August 23, 2013
Most of the leading law school textbooks explain arbitration by describing a case where a party suffers a loss and there is a dispute between the insurance company and the insured. The insured typically places a high value on the subject of the loss, while the insurance company places a lower value. A third party is called in to offer an opinion about the value of the loss and the parties agree to be bound by that third party’s opinion. Sometimes the parties each choose an appraiser and the two appraisers...
