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Arbitration
5th Circuit Affirms Order Denying Motion for Vacatur of Arbitration Panel’s Unanimous Decision in $586 Million Louisiana Barrier Islands Case
March 21, 2018
In an unpublished opinion, the United States Court of Appeals for the Fifth Circuit has upheld a district court’s decision refusing to vacate an arbitration panel’s unanimous order. In Louisiana Department of Natural Resources through the Coastal Protection Restoration Authority v. FEMA, No. 17-30140 (5th Cir., January 29, 2018), the Louisiana Department of Natural Resources (“LDNR”) filed a request for $586 million with the Federal Emergency Management Agency (“FEMA”) in order to restore...
March 21, 2018
In an unpublished opinion, the United States Court of Appeals for the Fifth Circuit has upheld a district court’s decision refusing to vacate an arbitration panel’s unanimous order. In Louisiana Department of Natural Resources through the Coastal Protection Restoration Authority v. FEMA, No. 17-30140 (5th Cir., January 29, 2018), the Louisiana Department of Natural Resources (“LDNR”) filed a request for $586 million with the Federal Emergency Management Agency (“FEMA”) in order to restore...
FINRA Releases New Report Regarding Unpaid Arbitration Awards
March 20, 2018
Yesterday, the Financial Industry Regulatory Authority (“FINRA”) published a report stating between 22 and 30 percent of arbitration awards issued through the organization’s forum went unpaid between 2010 and 2016. In addition, as much as 50 percent of the value of FINRA awards were not paid during the same time period. According to a FINRA news release titled, “Statistics on Unpaid Customer Awards in FINRA Arbitration”: Arbitration cases decided by award in the forum operated...
March 20, 2018
Yesterday, the Financial Industry Regulatory Authority (“FINRA”) published a report stating between 22 and 30 percent of arbitration awards issued through the organization’s forum went unpaid between 2010 and 2016. In addition, as much as 50 percent of the value of FINRA awards were not paid during the same time period. According to a FINRA news release titled, “Statistics on Unpaid Customer Awards in FINRA Arbitration”: Arbitration cases decided by award in the forum operated...
SCOTUS Declines to Hear Arbitration Dispute Over Texas Wind Energy Contract
March 19, 2018
The Supreme Court of the United States has declined to consider a Fifth Circuit Court of Appeals panel’s decision stating the Western District of Texas should not have compelled arbitration in a wind energy dispute because the parties’ case was not ripe for arbitration. In Lower Colorado River Authority v. Papalote Creek II, LLC, No. 17-785, the Lower Colorado River Authority (“LCRA”) entered into an agreement to purchase wind energy from Papalote Creek. According to a previous Disputing blog...
March 19, 2018
The Supreme Court of the United States has declined to consider a Fifth Circuit Court of Appeals panel’s decision stating the Western District of Texas should not have compelled arbitration in a wind energy dispute because the parties’ case was not ripe for arbitration. In Lower Colorado River Authority v. Papalote Creek II, LLC, No. 17-785, the Lower Colorado River Authority (“LCRA”) entered into an agreement to purchase wind energy from Papalote Creek. According to a previous Disputing blog...
Intrinsic Factors Influencing Decision Making of Arbitrators in Dispute Resolution of Variation Claims
March 19, 2018
Occurrence of disputes is a common feature in construction contracts. Adjudication of disputes through the arbitration process...
March 19, 2018
Occurrence of disputes is a common feature in construction contracts. Adjudication of disputes through the arbitration process...
Arbitrator Intelligence: From Intuition to Data in Arbitrator Appointments
March 14, 2018
Catherine A. Rogers, Professor of Law at Penn State Law and Professor of Ethics, Regulation, and the Rule of Law at Queen Mary, University of London, has published “Arbitrator Intelligence: From Intuition to Data in Arbitrator Appointments,” New York Dispute Resolution Lawyer Volume 11 No. 2 (Spring 2018). In her essay, Professor Rogers discusses using data gathered using the Arbitrator Intelligence Questionnaire to select neutrals. Here is the abstract: In virtually every sector...
March 14, 2018
Catherine A. Rogers, Professor of Law at Penn State Law and Professor of Ethics, Regulation, and the Rule of Law at Queen Mary, University of London, has published “Arbitrator Intelligence: From Intuition to Data in Arbitrator Appointments,” New York Dispute Resolution Lawyer Volume 11 No. 2 (Spring 2018). In her essay, Professor Rogers discusses using data gathered using the Arbitrator Intelligence Questionnaire to select neutrals. Here is the abstract: In virtually every sector...
Texas Courts Passion for Arbitration Continues in Payday Lender & Dallas Topless Club Cases
March 12, 2018
Proponents of binding mandatory arbitration scored two huge victories this week in the Texas appellate courts. In two separate and unrelated rulings, the Texas Supreme Court and the Dallas Court of Appeals ordered plaintiffs in two cases – a group of customers alleging they were illegally victimized by a payday lender and an exotic dancer suing a strip club for gross negligence – to litigate their claims through private arbitration instead of the public court system.
March 12, 2018
Proponents of binding mandatory arbitration scored two huge victories this week in the Texas appellate courts. In two separate and unrelated rulings, the Texas Supreme Court and the Dallas Court of Appeals ordered plaintiffs in two cases – a group of customers alleging they were illegally victimized by a payday lender and an exotic dancer suing a strip club for gross negligence – to litigate their claims through private arbitration instead of the public court system.
Sorry, Arbitration Agreements Are Not For The Courts’ Benefit
March 8, 2018
The Supreme Court of Nebraska gave an unpleasant surprise to its trial court judges last week: they cannot enforce arbitration agreements sua sponte. Boyd v. Cook, 298 Neb. 819 (Feb. 2, 2018). The case involved a messy shareholder dispute. A key contract to the dispute contained an arbitration provision covering “any dispute or controversy arising out of” the agreement. The suit began in April of 2014, and eventually included many parties and at least a dozen claims. In 2016,...
March 8, 2018
The Supreme Court of Nebraska gave an unpleasant surprise to its trial court judges last week: they cannot enforce arbitration agreements sua sponte. Boyd v. Cook, 298 Neb. 819 (Feb. 2, 2018). The case involved a messy shareholder dispute. A key contract to the dispute contained an arbitration provision covering “any dispute or controversy arising out of” the agreement. The suit began in April of 2014, and eventually included many parties and at least a dozen claims. In 2016,...
Issuing A Subpoena For Documents Under 28 U.S.C. § 1782 Also Requires Personal Jurisdiction Over The Subpoena Target
March 7, 2018
Under 28 U.S.C. § 1782, “[t]he district court of the district in which a person resides or is found may order him to . . . produce a document for use in a proceeding in a foreign or international tribunal . . . .” Courts in the Second Circuit appear to be coming around to accepting that a commercial arbitration can be “a foreign or international tribunal” for these purposes. Swell. But there is one more thing: they are also likely to treat a subpoena under that statute like a subpoena under...
March 7, 2018
Under 28 U.S.C. § 1782, “[t]he district court of the district in which a person resides or is found may order him to . . . produce a document for use in a proceeding in a foreign or international tribunal . . . .” Courts in the Second Circuit appear to be coming around to accepting that a commercial arbitration can be “a foreign or international tribunal” for these purposes. Swell. But there is one more thing: they are also likely to treat a subpoena under that statute like a subpoena under...
Federal Courts Do Not Appreciate Defendants Obtaining Arbitration Agreement From Active Plaintiff
March 6, 2018
In today’s post, we pick up where the 4th Circuit left off a few weeks ago — with federal circuit courts finding ways to avoid enforcing arbitration agreements that are obtained years after litigation has commenced. In Dasher v. RBC Bank (USA), __ F3d. ___, 2018 WL 832855 (11th Cir. Feb. 13, 2018), the plaintiffs alleged the bank had processed debit card transactions in such a way that it would increase overdraft charges. Although the date is not listed, the case appears to have begun...
March 6, 2018
In today’s post, we pick up where the 4th Circuit left off a few weeks ago — with federal circuit courts finding ways to avoid enforcing arbitration agreements that are obtained years after litigation has commenced. In Dasher v. RBC Bank (USA), __ F3d. ___, 2018 WL 832855 (11th Cir. Feb. 13, 2018), the plaintiffs alleged the bank had processed debit card transactions in such a way that it would increase overdraft charges. Although the date is not listed, the case appears to have begun...
A Belated Judicial Determination Regarding Whether a Party Is Bound By An Arbitration Agreement Requires a “De Novo” Proceeding
March 5, 2018
Typically, the issue of whether a party is bound by an arbitration agreement is raised in a judicial motion to compel under Section 4 of the Federal Arbitration Act (9 U.S.C. § 4). The issue also may be raised in a judicial application to stay an arbitration, as to which the Section 4 procedure applies as well. Occasionally, however, the issue is decided by an arbitrator in the first instance. When the matter eventually reaches a court — e.g., in the context of a post-arbitration motion to confirm...
March 5, 2018
Typically, the issue of whether a party is bound by an arbitration agreement is raised in a judicial motion to compel under Section 4 of the Federal Arbitration Act (9 U.S.C. § 4). The issue also may be raised in a judicial application to stay an arbitration, as to which the Section 4 procedure applies as well. Occasionally, however, the issue is decided by an arbitrator in the first instance. When the matter eventually reaches a court — e.g., in the context of a post-arbitration motion to confirm...
