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Arbitration
Negotiating in the Shadow of Adhesive Arbitration
May 1, 2018
Dispute resolution scholars have long understood that negotiators bargain in the shadow of the law. Although, historically, most dispute negotiations took place in the shadow of litigation, the increasing use of pre-dispute arbitration agreements (PDAAs) in adhesive consumer, franchise, employment, and investor contracts means that more and more disputants in those settings are negotiating in the shadow of mandatory arbitration, not litigation. Those PDAAs typically are non-negotiable, take-it-or-leave-it...
May 1, 2018
Dispute resolution scholars have long understood that negotiators bargain in the shadow of the law. Although, historically, most dispute negotiations took place in the shadow of litigation, the increasing use of pre-dispute arbitration agreements (PDAAs) in adhesive consumer, franchise, employment, and investor contracts means that more and more disputants in those settings are negotiating in the shadow of mandatory arbitration, not litigation. Those PDAAs typically are non-negotiable, take-it-or-leave-it...
SCOTUS Stays Arbitrability Dispute in Antitrust Case
April 19, 2018
The Supreme Court has stayed further proceedings in Archer & Daniels Sales v. Henry Schein Inc., a dispute about the arbitrability of a substantial antitrust case about dental equipment. The application and response are an interesting window into this seldom-seen aspect of civil practice.
April 19, 2018
The Supreme Court has stayed further proceedings in Archer & Daniels Sales v. Henry Schein Inc., a dispute about the arbitrability of a substantial antitrust case about dental equipment. The application and response are an interesting window into this seldom-seen aspect of civil practice.
Second Circuit Puts Out Simultaneous Class Arbitration Opinions
April 17, 2018
Two different panels of the Second Circuit issued opinions about class arbitration on the same day last week. One creates a circuit split over how specific parties must be to delegate the availability of class arbitration to arbitrators, and the second addresses when bankruptcy law can preempt the federal arbitration act. In Wells Fargo Advisors, LLC v. Sappington, 2018 WL 1177230 (2d Cir. March 7, 2018), a putative class of former Wells Fargo employees brought suit for unpaid overtime (FLSA)....
April 17, 2018
Two different panels of the Second Circuit issued opinions about class arbitration on the same day last week. One creates a circuit split over how specific parties must be to delegate the availability of class arbitration to arbitrators, and the second addresses when bankruptcy law can preempt the federal arbitration act. In Wells Fargo Advisors, LLC v. Sappington, 2018 WL 1177230 (2d Cir. March 7, 2018), a putative class of former Wells Fargo employees brought suit for unpaid overtime (FLSA)....
Mall Smoothie Does Not Bind Teenager To Mom’s Arbitration Agreement With Credit Card
April 16, 2018
A new Seventh Circuit case answers the age-old question: if a fourteen-year-old swipes her mom’s credit card to complete a smoothie purchase at the mall, is she bound to the credit card agreement? The case, A.D. v. Credit One Bank, N.A., __ F.3d __, 2018 WL 1414907 (Mar. 22. 2018), addressed whether the lead plaintiff in a putative TCPA class action was bound to an arbitration agreement. The lead plaintiff was a teenager when the case was filed, and she alleged that the defendant bank called...
April 16, 2018
A new Seventh Circuit case answers the age-old question: if a fourteen-year-old swipes her mom’s credit card to complete a smoothie purchase at the mall, is she bound to the credit card agreement? The case, A.D. v. Credit One Bank, N.A., __ F.3d __, 2018 WL 1414907 (Mar. 22. 2018), addressed whether the lead plaintiff in a putative TCPA class action was bound to an arbitration agreement. The lead plaintiff was a teenager when the case was filed, and she alleged that the defendant bank called...
Is Online Dispute Resolution The Future of Alternative Dispute Resolution?
April 13, 2018
The tech revolution has been underway for some time now but has only recently come to the forefront of the general public’s consciousness from the explosion in attention to bitcoin. The progress of technology has allowed it to creep into the domain of alternative dispute resolution. There is now online mediation, online arbitration, and even arbitration utilising the same blockchain technology as cryptocurrencies: blockchain arbitration. These forms of alternative dispute resolution, known as “online...
April 13, 2018
The tech revolution has been underway for some time now but has only recently come to the forefront of the general public’s consciousness from the explosion in attention to bitcoin. The progress of technology has allowed it to creep into the domain of alternative dispute resolution. There is now online mediation, online arbitration, and even arbitration utilising the same blockchain technology as cryptocurrencies: blockchain arbitration. These forms of alternative dispute resolution, known as “online...
Will the Commercialisation of Blockchain Technologies Change the Face of Arbitration?
April 12, 2018
Blockchain technology and its applications are filtering into mainstream industries. This technology has the potential to create...
April 12, 2018
Blockchain technology and its applications are filtering into mainstream industries. This technology has the potential to create...
SCOTX Agrees to Consider Whether Crop Insurance Dispute Was Properly Submitted to Arbitration
April 11, 2018
The Supreme Court of Texas has agreed to consider whether a crop insurance dispute was properly submitted to arbitration. In Jody James Farms, JV v. The Altman Group, Inc. and Laurie Diaz, No. 17-0062, Jody James Farms (“JJF”) purchased crop insurance from Rain & Hail through an insurance agency, the Altman Group, in 2010. The insurance policy contained a lengthy arbitration provision which stated any disputes related to a claim determination made by the insurer must...
April 11, 2018
The Supreme Court of Texas has agreed to consider whether a crop insurance dispute was properly submitted to arbitration. In Jody James Farms, JV v. The Altman Group, Inc. and Laurie Diaz, No. 17-0062, Jody James Farms (“JJF”) purchased crop insurance from Rain & Hail through an insurance agency, the Altman Group, in 2010. The insurance policy contained a lengthy arbitration provision which stated any disputes related to a claim determination made by the insurer must...
Clause Construction: A Glimpse into Judicial and Arbitral Decision-Making
April 10, 2018
Professor David Horton, University of California, Davis, School of Law, has published “Clause Construction: A Glimpse into Judicial and Arbitral Decision-Making,” Duke Law Journal, Vol. 68, Forthcoming. In his journal article, Professor Horton compares clause construction decision outcomes for judicial and arbitral proceedings. Here is the abstract: For decades, the U.S. Supreme Court has insisted that forcing a plaintiff to arbitrate — rather than allowing her to litigate...
April 10, 2018
Professor David Horton, University of California, Davis, School of Law, has published “Clause Construction: A Glimpse into Judicial and Arbitral Decision-Making,” Duke Law Journal, Vol. 68, Forthcoming. In his journal article, Professor Horton compares clause construction decision outcomes for judicial and arbitral proceedings. Here is the abstract: For decades, the U.S. Supreme Court has insisted that forcing a plaintiff to arbitrate — rather than allowing her to litigate...
One Smoothie, With a Side of Arbitration?
April 9, 2018
After A.D. received several calls from Credit One regarding her mother's (Ms. Serrano) credit card debt, A.D. sued by and through her mother under the Telephone Consumer Protection Act. A.D. did not have an account with Credit One, but Ms. Serrano had opened an account in 2003. When Ms. Serrano opened her account, she signed a cardholder agreement. The agreement included an arbitration provision that required Ms. Serrano and any "authorized user" to arbitrate their claims against Credit One. Eighteen...
April 9, 2018
After A.D. received several calls from Credit One regarding her mother's (Ms. Serrano) credit card debt, A.D. sued by and through her mother under the Telephone Consumer Protection Act. A.D. did not have an account with Credit One, but Ms. Serrano had opened an account in 2003. When Ms. Serrano opened her account, she signed a cardholder agreement. The agreement included an arbitration provision that required Ms. Serrano and any "authorized user" to arbitrate their claims against Credit One. Eighteen...
Fifth Circuit Affirms Order Denying Arbitration Where Judicial Process Was Invoked
April 9, 2018
The Fifth Circuit Court of Appeals has ruled in an unpublished opinion that a physician waived his right to arbitration by substantially invoking “the judicial process to the detriment or prejudice of the other party.” In Raju v. Murphy, No. 17-60550 (5th Cir. Jan. 26, 2018), two physicians, Raju and Murphy, entered into a business contract that included an arbitration clause. Following a disagreement between the doctors, Dr. Raju filed a lawsuit against Dr. Murphy in state court. ...
April 9, 2018
The Fifth Circuit Court of Appeals has ruled in an unpublished opinion that a physician waived his right to arbitration by substantially invoking “the judicial process to the detriment or prejudice of the other party.” In Raju v. Murphy, No. 17-60550 (5th Cir. Jan. 26, 2018), two physicians, Raju and Murphy, entered into a business contract that included an arbitration clause. Following a disagreement between the doctors, Dr. Raju filed a lawsuit against Dr. Murphy in state court. ...
