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Arbitration
Trickle Down Arbitration-omics
June 21, 2018
Lots of folks are writing about the long-term impact of SCOTUS’s recent decision in Epic Systems, but it is also important to note that there has been immediate, short-term impact. For example, a lead plaintiff agreed to take her sex discrimination case against a law firm to individual arbitration, abandoning her putative class action, after the Epic decision was released. A federal judge is ready to dismiss a separate class action against Epic Systems (regarding overtime pay) as a result...
June 21, 2018
Lots of folks are writing about the long-term impact of SCOTUS’s recent decision in Epic Systems, but it is also important to note that there has been immediate, short-term impact. For example, a lead plaintiff agreed to take her sex discrimination case against a law firm to individual arbitration, abandoning her putative class action, after the Epic decision was released. A federal judge is ready to dismiss a separate class action against Epic Systems (regarding overtime pay) as a result...
Arbitration Jiu Jitsu: Increasing the Pressure to Settle With a “Sealed Settlement Offer”
June 21, 2018
The cost of arbitration, including attorneys’ fees, can be substantial, commensurate with the matters in dispute. Your desire to settle a dispute that is going to arbitration is often as or more substantial. But sometimes your adversary is not willing to settle at your very rational number. What next — increase your settlement offer or reduce your demand? How about using the anticipated arbitration costs to your advantage? Consider incentivizing your adversary with a “sealed settlement offer,”...
June 21, 2018
The cost of arbitration, including attorneys’ fees, can be substantial, commensurate with the matters in dispute. Your desire to settle a dispute that is going to arbitration is often as or more substantial. But sometimes your adversary is not willing to settle at your very rational number. What next — increase your settlement offer or reduce your demand? How about using the anticipated arbitration costs to your advantage? Consider incentivizing your adversary with a “sealed settlement offer,”...
Fraudulent Inducement Claims Go To Arbitration
June 20, 2018
A recent case out of the Eastern District of Missouri, Schoemehl v. Unwin, No. 4:18-cv-00031-JAR, underlines the fact that...
June 20, 2018
A recent case out of the Eastern District of Missouri, Schoemehl v. Unwin, No. 4:18-cv-00031-JAR, underlines the fact that...
Houston COA Denies Petition for Mandamus Relief Over Arbitration Order
June 19, 2018
In a 2-1 decision, the Court of Appeals for the First District of Texas has refused to issue a writ of mandamusdirecting a lower court to vacate its order compelling arbitration. In the case, In re Vantage Drilling Int’l, Vantage Deepwater Drilling, Inc., and Vantage Energy Services, Inc., No. 01-17-00592-CV (June 5, 2018), Vantage Drilling International and its affiliate companies (“Vantage”) hired a law firm, Martinez Partners, to represent the company in a Foreign Corrupt...
June 19, 2018
In a 2-1 decision, the Court of Appeals for the First District of Texas has refused to issue a writ of mandamusdirecting a lower court to vacate its order compelling arbitration. In the case, In re Vantage Drilling Int’l, Vantage Deepwater Drilling, Inc., and Vantage Energy Services, Inc., No. 01-17-00592-CV (June 5, 2018), Vantage Drilling International and its affiliate companies (“Vantage”) hired a law firm, Martinez Partners, to represent the company in a Foreign Corrupt...
An Arbitrator’s Power May Be Greater Than That of a Judge
June 19, 2018
Arbitration is a creature of contract, and an arbitrator’s powers are in effect defined by the parties’ arbitration agreement. Paradoxically, although an arbitration agreement can be written (double-spaced) on one side of a cocktail napkin, in some cases it may grant greater authority to an arbitrator than a judge has. For example, in Timegate Studios, Inc. v. Southpeak Interactive, LLC, Case No. 12-20256 (5th Cir. Apr. 9, 2013), the Fifth Circuit confirmed an arbitration award in which...
June 19, 2018
Arbitration is a creature of contract, and an arbitrator’s powers are in effect defined by the parties’ arbitration agreement. Paradoxically, although an arbitration agreement can be written (double-spaced) on one side of a cocktail napkin, in some cases it may grant greater authority to an arbitrator than a judge has. For example, in Timegate Studios, Inc. v. Southpeak Interactive, LLC, Case No. 12-20256 (5th Cir. Apr. 9, 2013), the Fifth Circuit confirmed an arbitration award in which...
Houston Federal Court Confirms Consent Award Based on New York Convention
June 18, 2018
The Southern District of Texas in Houston has confirmed a $14 million arbitration award in an international oil and gas dispute. In Transocean Offshore Gulf of Guinea VII Ltd., et al. v. Erin Energy Corp., No. H-17-2623 (S.D. Tex. Mar. 12, 2018), the London Court of International Arbitration issued a consent award in favor of Transocean related to a dispute with an oil and gas exploration company, Erin Energy, over a contract for work that was performed off of the coast of Nigeria. After...
June 18, 2018
The Southern District of Texas in Houston has confirmed a $14 million arbitration award in an international oil and gas dispute. In Transocean Offshore Gulf of Guinea VII Ltd., et al. v. Erin Energy Corp., No. H-17-2623 (S.D. Tex. Mar. 12, 2018), the London Court of International Arbitration issued a consent award in favor of Transocean related to a dispute with an oil and gas exploration company, Erin Energy, over a contract for work that was performed off of the coast of Nigeria. After...
Streamlined Three-Arbitrator Panel Option for Large Complex Cases
June 16, 2018
In 2017, seven out of every 10 AAA® commercial cases with claims of $1 million or more settled prior to going to award. For that reason, the AAA has introduced the Streamlined Three-Arbitrator Panel Option to help parties in large cases lower the costs and escalate the speed of the dispute resolution process. When parties’ agreement calls for three arbitrators to hear and decide their case, the Streamlined Three-Arbitrator Panel Option allows them to utilize a single arbitrator for the preliminary...
June 16, 2018
In 2017, seven out of every 10 AAA® commercial cases with claims of $1 million or more settled prior to going to award. For that reason, the AAA has introduced the Streamlined Three-Arbitrator Panel Option to help parties in large cases lower the costs and escalate the speed of the dispute resolution process. When parties’ agreement calls for three arbitrators to hear and decide their case, the Streamlined Three-Arbitrator Panel Option allows them to utilize a single arbitrator for the preliminary...
1st Circuit Issues Reminder That Courts Can Enjoin Conduct Pending Arbitration
June 13, 2018
One question I get frequently is whether a party can protect the status quo by seeking a court injunction, even if there is an arbitration agreement in place. Usually, I point them back to this post from 2011 (with the caveat that the AAA rules now authorize arbitrators to grant emergency relief, without any need for referencing “optional rules”). But, a new case from the First Circuit — with retired Justice Souter on the panel — confirms that injunctions remain possible, and not just...
June 13, 2018
One question I get frequently is whether a party can protect the status quo by seeking a court injunction, even if there is an arbitration agreement in place. Usually, I point them back to this post from 2011 (with the caveat that the AAA rules now authorize arbitrators to grant emergency relief, without any need for referencing “optional rules”). But, a new case from the First Circuit — with retired Justice Souter on the panel — confirms that injunctions remain possible, and not just...
Norris on the Federal Arbitration Act
June 12, 2018
Luke Norris (Columbia University - Law School; Benjamin N. Cardozo School of Law) has posted The Parity Principle (New York University Law Review, Vol. 93, 2018) on SSRN. Here is the abstract: The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities...
June 12, 2018
Luke Norris (Columbia University - Law School; Benjamin N. Cardozo School of Law) has posted The Parity Principle (New York University Law Review, Vol. 93, 2018) on SSRN. Here is the abstract: The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities...
Huang, Hui, & Li on Federal Judge Ideology & Litigation Risk
June 11, 2018
Allen Huang (Hong Kong University of Science and Technology - Department of Accounting), Kai Wai Hui (The University of Hong Kong (HKU) - Department of Accounting), & Reeyarn Zhiyang Li (University of Mannheim - Accounting and Taxation; Hong Kong University of Science and Technology) have posted Federal Judge Ideology: A New Measure of Ex-Ante Litigation Risk on SSRN. Here is the abstract: Drawing on the political theory of judicial decision making, our paper proposes a parsimonious ex ante...
June 11, 2018
Allen Huang (Hong Kong University of Science and Technology - Department of Accounting), Kai Wai Hui (The University of Hong Kong (HKU) - Department of Accounting), & Reeyarn Zhiyang Li (University of Mannheim - Accounting and Taxation; Hong Kong University of Science and Technology) have posted Federal Judge Ideology: A New Measure of Ex-Ante Litigation Risk on SSRN. Here is the abstract: Drawing on the political theory of judicial decision making, our paper proposes a parsimonious ex ante...
