Arbitration
New ADR Pledge
April 11, 2013
The concept of “ADR Pledge” has been known for at least last three decades. Most often it is a public statement in which those who sign it (corporations, law firms, governmental agencies etc.) declare to adopt a systemic approach to dispute resolution with more focus on mediation and ADR. In different forms ADR pledges have been promoted in many countries, including the United States, the United Kingdom, France or Singapore. From March 2013, a similar pledge is opened for signatures by business...
April 11, 2013
The concept of “ADR Pledge” has been known for at least last three decades. Most often it is a public statement in which those who sign it (corporations, law firms, governmental agencies etc.) declare to adopt a systemic approach to dispute resolution with more focus on mediation and ADR. In different forms ADR pledges have been promoted in many countries, including the United States, the United Kingdom, France or Singapore. From March 2013, a similar pledge is opened for signatures by business...
Study of Corporate Counsel Shows Arbitration Is Past Its “Tipping Point,” Usage Declining
April 11, 2013
A new article is out with more detail about how opinions among counsel for Fortune 1000 companies have changed over the last 15 years with respect to arbitration and mediation. (I posted initial info here last spring.) By comparing results of a 1997 survey of Fortune 1,000 corporate counsel with results of a 2011 survey of Fortune 1,000 corporate counsel, Professors Thomas Stipanowich and J. Ryan Lamare conclude that ”[b]inding arbitration … reached its tipping point: while some...
April 11, 2013
A new article is out with more detail about how opinions among counsel for Fortune 1000 companies have changed over the last 15 years with respect to arbitration and mediation. (I posted initial info here last spring.) By comparing results of a 1997 survey of Fortune 1,000 corporate counsel with results of a 2011 survey of Fortune 1,000 corporate counsel, Professors Thomas Stipanowich and J. Ryan Lamare conclude that ”[b]inding arbitration … reached its tipping point: while some...
Fifth Circuit Upholds Arbitrator’s Decision in Employment
April 11, 2013
The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct. Following his termination, Haag filed a lawsuit in the Southern District of Mississippi and the company compelled the dispute to arbitration pursuant...
April 11, 2013
The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct. Following his termination, Haag filed a lawsuit in the Southern District of Mississippi and the company compelled the dispute to arbitration pursuant...
Second Circuit Refuses to Vacate for Evident Partiality
April 11, 2013
In a summary order, the Second Circuit Court of Appeals affirmed the district court’s confirmation of an arbitration award issued in favor of NCG Network Asia and the denial of PAC Pacific Group International’s motion to vacate. The court found that the arbitrator had properly disclosed a prior business relationship that indirectly linked him with NCG Network Asia, nothing about the relationship would compel a reasonable person to believe that the arbitrator was partial, and that PAC Pacific...
April 11, 2013
In a summary order, the Second Circuit Court of Appeals affirmed the district court’s confirmation of an arbitration award issued in favor of NCG Network Asia and the denial of PAC Pacific Group International’s motion to vacate. The court found that the arbitrator had properly disclosed a prior business relationship that indirectly linked him with NCG Network Asia, nothing about the relationship would compel a reasonable person to believe that the arbitrator was partial, and that PAC Pacific...
SEC Considering Authority to Limit or Prohibit Pre-Dispute Arbitration Agreements
April 10, 2013
In the summer of 2010, President Barack Obama signed into law the “Dodd-Frank Act” (P.L. 111-203). Three sections of that act should be particularly important to those who provide or employ dispute resolution services. Section 921 grants the Securities and Exchange Commission the authority to limit or prohibit the use of pre-dispute arbitration agreements for securities disputes. Section 1028 requires the Consumer Financial Protection Bureau (CFPB) to conduct a study regarding pre-dispute...
April 10, 2013
In the summer of 2010, President Barack Obama signed into law the “Dodd-Frank Act” (P.L. 111-203). Three sections of that act should be particularly important to those who provide or employ dispute resolution services. Section 921 grants the Securities and Exchange Commission the authority to limit or prohibit the use of pre-dispute arbitration agreements for securities disputes. Section 1028 requires the Consumer Financial Protection Bureau (CFPB) to conduct a study regarding pre-dispute...
Declaratory Action Not Appropriate to Challenge Interlocutory Arbitration Orders
April 10, 2013
In an arbitration related to an uninsured motorist insurance claim, the insured twice challenged the arbitrators’ discovery rulings by filing declaratory relief actions in state court. The first time, the appellate court affirmed the lower court’s dismissal of the action for failure to first challenge the subject order with the arbitrators. The second time, after the appellant unsuccessfully challenged the orders with the arbitrators, the lower court dismissed the suit for lack of subject matter...
April 10, 2013
In an arbitration related to an uninsured motorist insurance claim, the insured twice challenged the arbitrators’ discovery rulings by filing declaratory relief actions in state court. The first time, the appellate court affirmed the lower court’s dismissal of the action for failure to first challenge the subject order with the arbitrators. The second time, after the appellant unsuccessfully challenged the orders with the arbitrators, the lower court dismissed the suit for lack of subject matter...
Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards
April 9, 2013
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Understood broadly, these procedures include formal and informal administrative adjudication, as well as arbitration, mediation and other court-connected and agency-connected innovations. In general, reformers conceived these “alternative” processes as means to end legal (or potentially legal) disputes and escape the perceived costs and inadequacies...
April 9, 2013
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Understood broadly, these procedures include formal and informal administrative adjudication, as well as arbitration, mediation and other court-connected and agency-connected innovations. In general, reformers conceived these “alternative” processes as means to end legal (or potentially legal) disputes and escape the perceived costs and inadequacies...
The Supreme Court and the Future of Arbitration: Preemptive Federal Procedural Paradigm?
April 9, 2013
Adopted by Congress in 1925, the Federal Arbitration Act (“FAA”) established a federal “pro-arbitration policy.” That much is beyond debate. It would be difficult indeed to find a judicial decision applying the FAA that did not begin its analysis by reciting the policy’s existence. But courts and scholars have been wrestling for decades over what this federal “proarbitration policy” actually means. Eliminating traditional judicial hostility toward enforcing arbitration agreements?...
April 9, 2013
Adopted by Congress in 1925, the Federal Arbitration Act (“FAA”) established a federal “pro-arbitration policy.” That much is beyond debate. It would be difficult indeed to find a judicial decision applying the FAA that did not begin its analysis by reciting the policy’s existence. But courts and scholars have been wrestling for decades over what this federal “proarbitration policy” actually means. Eliminating traditional judicial hostility toward enforcing arbitration agreements?...
Arbitration Clauses Prevent Consumers from Presenting Procedurally Difficult Claims
April 9, 2013
The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated...
April 9, 2013
The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated...
AT&T Mobility and the Future of Small Claims Arbitration
April 9, 2013
Like many other cellular service customers in 2002, Vincent and Liza Concepcion bought what they thought was a free cell phone, but were charged $30.22 in taxes; so they brought a class action against AT&T Mobility LLC (“AT&T”) to recoup those undisclosed fees. Because the Supreme Court upheld the class action waiver in the pre-dispute arbitration clause in the Concepcions’ cell phone contract, if they choose to go forward, they will have to bring their individual claim of $30.22...
April 9, 2013
Like many other cellular service customers in 2002, Vincent and Liza Concepcion bought what they thought was a free cell phone, but were charged $30.22 in taxes; so they brought a class action against AT&T Mobility LLC (“AT&T”) to recoup those undisclosed fees. Because the Supreme Court upheld the class action waiver in the pre-dispute arbitration clause in the Concepcions’ cell phone contract, if they choose to go forward, they will have to bring their individual claim of $30.22...
