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Arbitration
Argument Analysis: The Familiar Divide in Arbitration Cases Re-emerges
November 6, 2018
The Supreme Court’s conservative majority has been consistently skeptical of arguments that individual consumers or employees who have agreed to bring their legal claims in arbitration have a right to do so on an aggregated basis, such as in a class action. At the same time, arbitration is a function of contract, meaning parties can agree to aggregated arbitrations. The main question in Lamps Plus Inc. v. Varela, which involves contract language that arguably allows aggregated arbitrations, is how to reconcile...
November 6, 2018
The Supreme Court’s conservative majority has been consistently skeptical of arguments that individual consumers or employees who have agreed to bring their legal claims in arbitration have a right to do so on an aggregated basis, such as in a class action. At the same time, arbitration is a function of contract, meaning parties can agree to aggregated arbitrations. The main question in Lamps Plus Inc. v. Varela, which involves contract language that arguably allows aggregated arbitrations, is how to reconcile...
Argument Analysis: Justices Signal Opposition to Vague Exceptions That Would Limit Enforceability of Arbitration Agreements
November 5, 2018
The November argument session brought the justices back once again to the Federal Arbitration Act, with a pair of cases on the topic — Henry Schein Inc. v. Archer & White Sales Inc. and Lamps Plus Inc. v. Varela. As these things go, the issue in Henry Schein is straightforward: When one party wants to take a dispute to arbitration but the other party disagrees, how do courts decide whether a particular dispute should be decided by a court or sent to arbitration? The problem commonly...
November 5, 2018
The November argument session brought the justices back once again to the Federal Arbitration Act, with a pair of cases on the topic — Henry Schein Inc. v. Archer & White Sales Inc. and Lamps Plus Inc. v. Varela. As these things go, the issue in Henry Schein is straightforward: When one party wants to take a dispute to arbitration but the other party disagrees, how do courts decide whether a particular dispute should be decided by a court or sent to arbitration? The problem commonly...
Could Blockchain Become The New Standard For Transparency in Investment Arbitration?
November 2, 2018
In a world hurtling through one technological breakthrough after another, we are entering into an exciting new era. In recent contributions to this Blog, blockchain and its potential applications in arbitration have been well-documented by practitioners and early-adopters. However, there is one exceptional feature in blockchain that might be useful in investment arbitration. The notion of transparency was once unfamiliar in international arbitration. Nonetheless, recent regulations have popularized...
November 2, 2018
In a world hurtling through one technological breakthrough after another, we are entering into an exciting new era. In recent contributions to this Blog, blockchain and its potential applications in arbitration have been well-documented by practitioners and early-adopters. However, there is one exceptional feature in blockchain that might be useful in investment arbitration. The notion of transparency was once unfamiliar in international arbitration. Nonetheless, recent regulations have popularized...
Fifth Circuit Dismisses Case Against Texas Energy Company Due to Man’s Refusal to Arbitrate
November 1, 2018
The United States Court of Appeals for the Fifth Circuit has upheld a Texas federal court’s order dismissing a putative class action lawsuit after a plaintiff failed to pursue arbitration. In Griggs v. S.G.E. Management, L.L.C., et al., No. 17-50655 (5th Cir. September 27, 2018), a man named Griggs began working for a Texas-based energy company’s wholly owned subsidiary, Ignite, as an Independent Associate (“IA”). As part of the hiring process, Griggs agreed to arbitrate any claims...
November 1, 2018
The United States Court of Appeals for the Fifth Circuit has upheld a Texas federal court’s order dismissing a putative class action lawsuit after a plaintiff failed to pursue arbitration. In Griggs v. S.G.E. Management, L.L.C., et al., No. 17-50655 (5th Cir. September 27, 2018), a man named Griggs began working for a Texas-based energy company’s wholly owned subsidiary, Ignite, as an Independent Associate (“IA”). As part of the hiring process, Griggs agreed to arbitrate any claims...
Justices Weigh Class-Action Limits in Arbitration Contract
October 31, 2018
The Supreme Court seemed prepared on Monday to rule that workers at a California business could not band together in an arbitration proceeding to seek compensation for what they said was their employer’s failure to protect their data. The case was the court’s latest effort to determine whether companies can use arbitration provisions to bar class actions in court and in arbitration proceedings. In cases concerning fine-print contracts with consumers and employment agreements, the court has ruled...
October 31, 2018
The Supreme Court seemed prepared on Monday to rule that workers at a California business could not band together in an arbitration proceeding to seek compensation for what they said was their employer’s failure to protect their data. The case was the court’s latest effort to determine whether companies can use arbitration provisions to bar class actions in court and in arbitration proceedings. In cases concerning fine-print contracts with consumers and employment agreements, the court has ruled...
U.S. Supreme Court Considering Three Arbitration Cases in October Term
October 30, 2018
Last week, the United States Supreme Court heard oral argument in a case involving the arbitrability of independent contractor agreements for transportation workers. In New Prime Inc. v. Oliveira, No. 17-340, a federal district court denied trucking company New Prime’s motion to compel arbitration based on the terms of a signed independent contractor agreement and ordered additional discovery regarding truck driver Oliveira’s employment status. According to the district court,...
October 30, 2018
Last week, the United States Supreme Court heard oral argument in a case involving the arbitrability of independent contractor agreements for transportation workers. In New Prime Inc. v. Oliveira, No. 17-340, a federal district court denied trucking company New Prime’s motion to compel arbitration based on the terms of a signed independent contractor agreement and ordered additional discovery regarding truck driver Oliveira’s employment status. According to the district court,...
Blockchain and Cryptocurrencies: The New Frontier of Investment Arbitration?
October 29, 2018
Blockchain and cryptocurrencies (including bitcoin) have garnered significant attention in legal scholarship over the last...
October 29, 2018
Blockchain and cryptocurrencies (including bitcoin) have garnered significant attention in legal scholarship over the last...
The Arbitration-Litigation Paradox
October 29, 2018
Assistant Professor of Law Pamela Bookman, Temple University Beasley School of Law, has written “The Arbitration-Litigation Paradox,” Vanderbilt Law Review, Forthcoming; Temple University Legal Studies Research Paper No. 2018-29. In her journal article, Professor Bookman examines whether the United States Supreme Court’s jurisprudence universally favors the arbitral forum. Here is the abstract: The Supreme Court’s interpretation of the Federal Arbitration Act...
October 29, 2018
Assistant Professor of Law Pamela Bookman, Temple University Beasley School of Law, has written “The Arbitration-Litigation Paradox,” Vanderbilt Law Review, Forthcoming; Temple University Legal Studies Research Paper No. 2018-29. In her journal article, Professor Bookman examines whether the United States Supreme Court’s jurisprudence universally favors the arbitral forum. Here is the abstract: The Supreme Court’s interpretation of the Federal Arbitration Act...
Litigation Conduct Waivers and the New York Convention
October 26, 2018
Today’s post concerns waiver of the right to arbitrate by an ambivalent plaintiff in a US District Court, and under what conditions it might be appropriate for a US District Court, applying the New York Convention and FAA Section 206 (governing motions to compel arbitration under arbitration agreements covered by the Convention), to decide that such a waiver by virtue of the litigation conduct of the plaintiff renders an arbitration agreement “null and void” (or “inoperative”) under Article...
October 26, 2018
Today’s post concerns waiver of the right to arbitrate by an ambivalent plaintiff in a US District Court, and under what conditions it might be appropriate for a US District Court, applying the New York Convention and FAA Section 206 (governing motions to compel arbitration under arbitration agreements covered by the Convention), to decide that such a waiver by virtue of the litigation conduct of the plaintiff renders an arbitration agreement “null and void” (or “inoperative”) under Article...
11th Circuit Thinks Class Arbitrability Is Not That Special
October 25, 2018
Usually the plaintiffs in a class action want to stay out of arbitration, but in the recent case of JPAY v. Kobel, 2018 WL 4472207 (11th Cir. Sept. 19, 2018), it was the class representatives who were fighting for arbitration. In particular, they wanted the arbitrator to decide whether they could have a class action. And they won. In a case that reads as if it is charting significant new ground, even though the court reached almost the same conclusion just a few weeks ago, the Eleventh...
October 25, 2018
Usually the plaintiffs in a class action want to stay out of arbitration, but in the recent case of JPAY v. Kobel, 2018 WL 4472207 (11th Cir. Sept. 19, 2018), it was the class representatives who were fighting for arbitration. In particular, they wanted the arbitrator to decide whether they could have a class action. And they won. In a case that reads as if it is charting significant new ground, even though the court reached almost the same conclusion just a few weeks ago, the Eleventh...
