Arbitration
Estlund on Mandatory Arbitration & Employment
February 28, 2018
Cynthia L. Estlund (New York University School of Law) has posted The Black Hole of Mandatory Arbitration (North Carolina Law Review, Vol. 96, No. --, 2018) on SSRN. Here is the abstract: What is the impact of mandatory arbitration agreements (MAAs) in employment? It is now several decades since the Supreme Court gave a green light to employers’ imposition of broad MAAs that foreclose litigation over nearly all federal and state employment claims. Since then, scholars have labored to develop...
February 28, 2018
Cynthia L. Estlund (New York University School of Law) has posted The Black Hole of Mandatory Arbitration (North Carolina Law Review, Vol. 96, No. --, 2018) on SSRN. Here is the abstract: What is the impact of mandatory arbitration agreements (MAAs) in employment? It is now several decades since the Supreme Court gave a green light to employers’ imposition of broad MAAs that foreclose litigation over nearly all federal and state employment claims. Since then, scholars have labored to develop...
Court of Arbitration for Sport Overturns Lifetime Olympics Ban for 28 Russian Athletes Accused of Doping
February 16, 2018
Last week, the Court of Arbitration for Sport (“CAS”) delivered a decision related to 39 lifetime athlete bans that were issued by the Disciplinary Commission of the International Olympic Committee (“IOC”). The lifetime bans were originally issued against 43 Russian athletes in connection with large-scale doping allegations related to the 2014 Olympic Winter Games that were held in Sochi. Following the IOC’s order, 42 of the banned athletes filed an appeal with CAS. According...
February 16, 2018
Last week, the Court of Arbitration for Sport (“CAS”) delivered a decision related to 39 lifetime athlete bans that were issued by the Disciplinary Commission of the International Olympic Committee (“IOC”). The lifetime bans were originally issued against 43 Russian athletes in connection with large-scale doping allegations related to the 2014 Olympic Winter Games that were held in Sochi. Following the IOC’s order, 42 of the banned athletes filed an appeal with CAS. According...
District Court Breaks New Ground by Vacating Arbitrator’s Class Certification Award
February 15, 2018
Here is the opening line of the article: “In what appears to be a first-of-its-kind ruling, the District Court for the Southern District of New York recently concluded that a federal district court has the authority to vacate an arbitrator’s class certification award based on the due process rights of absent class members.” The underlying case is Jock v. Sterling Jewelers, Inc., 08 Civ. 2875, 2018 WL 418571 (S.D.N.Y. Jan. 15, 2018), and plaintiffs have already filed a notice of appeal. If...
February 15, 2018
Here is the opening line of the article: “In what appears to be a first-of-its-kind ruling, the District Court for the Southern District of New York recently concluded that a federal district court has the authority to vacate an arbitrator’s class certification award based on the due process rights of absent class members.” The underlying case is Jock v. Sterling Jewelers, Inc., 08 Civ. 2875, 2018 WL 418571 (S.D.N.Y. Jan. 15, 2018), and plaintiffs have already filed a notice of appeal. If...
4th Circuit Finds Club Waived Right To Compel Arbitration
February 14, 2018
In a recent opinion, the Fourth Circuit cited waiver as its basis to refuse to compel arbitration, but the result seems animated by a sense that the arbitration agreements were unenforceable. Degidio v. Crazy Horse Saloon & Restaurant, Inc., __ F.3d __, 2018 WL 456905 (4th Cir. Jan. 18, 2018). The case involved a putative collective and class action case by “exotic dancers” at a club in South Carolina, alleging they were wrongly classified as independent contractors and thereby denied...
February 14, 2018
In a recent opinion, the Fourth Circuit cited waiver as its basis to refuse to compel arbitration, but the result seems animated by a sense that the arbitration agreements were unenforceable. Degidio v. Crazy Horse Saloon & Restaurant, Inc., __ F.3d __, 2018 WL 456905 (4th Cir. Jan. 18, 2018). The case involved a putative collective and class action case by “exotic dancers” at a club in South Carolina, alleging they were wrongly classified as independent contractors and thereby denied...
An Employer’s Notice to Employees of a Mandatory Arbitration Program May be Insufficient Basis to Compel Arbitration
February 13, 2018
Arbitration is of course a creature of contract, and so a party may not be compelled to arbitrate unless it has agreed, or is deemed to have agreed, to arbitrate a dispute. An offeree may be deemed to have manifested its agreement to an arbitration regime by various sorts of conduct, including in some instances inaction in the face of notice. However, there is a line in the sand in that regard in the Sixth Circuit when it comes to employer-employee relations. That is, an employer’s notice of its institution...
February 13, 2018
Arbitration is of course a creature of contract, and so a party may not be compelled to arbitrate unless it has agreed, or is deemed to have agreed, to arbitrate a dispute. An offeree may be deemed to have manifested its agreement to an arbitration regime by various sorts of conduct, including in some instances inaction in the face of notice. However, there is a line in the sand in that regard in the Sixth Circuit when it comes to employer-employee relations. That is, an employer’s notice of its institution...
Dallas COA Upholds Confirmation of FINRA Arbitration Panel’s Award
February 8, 2018
Texas’ Fifth District Court of Appeals in Dallas has affirmed a lower court’s order confirming an arbitration award in a securities case. In Craig v. Southwest Securities, Inc., No. 05-16-01378-CV (December 18, 2017), a woman, Craig, instituted arbitration proceedings against a financial company, Southwest Securities, over the company’s purported mismanagement of her retirement investments. Following a hearing, a Financial Industry Regulatory Authority (“FINRA”) arbitration panel...
February 8, 2018
Texas’ Fifth District Court of Appeals in Dallas has affirmed a lower court’s order confirming an arbitration award in a securities case. In Craig v. Southwest Securities, Inc., No. 05-16-01378-CV (December 18, 2017), a woman, Craig, instituted arbitration proceedings against a financial company, Southwest Securities, over the company’s purported mismanagement of her retirement investments. Following a hearing, a Financial Industry Regulatory Authority (“FINRA”) arbitration panel...
Back to Arbitration Basics: Recent Federal Decisions (and a SCOTUS Preview)
February 7, 2018
Now that we’ve run through those reminders on issues that arise frequently in arbitration law, let’s talk about some unsettled issues. SCOTUS today is considering two cases involving delegation clauses and how lower courts should put its Rent-a-Center, West decision into practice: New Prime, Inc. v. Oliveira — this case comes from the First Circuit and raises the question whether the court should determine that the FAA applies before enforcing a delegation clause. Why does that...
February 7, 2018
Now that we’ve run through those reminders on issues that arise frequently in arbitration law, let’s talk about some unsettled issues. SCOTUS today is considering two cases involving delegation clauses and how lower courts should put its Rent-a-Center, West decision into practice: New Prime, Inc. v. Oliveira — this case comes from the First Circuit and raises the question whether the court should determine that the FAA applies before enforcing a delegation clause. Why does that...
The Blurring of the Public/Private Distinction or the Collapse of a Category? The Story of Investment Arbitration
February 2, 2018
Guillermo Jose Garcia Sanchez, Associate Professor of Law at the Texas A&M University School of Law and Affiliated Scholar at the University of Houston’s Center for U.S. and Mexican Law, has published “The Blurring of the Public/Private Distinction or the Collapse of a Category? The Story of Investment Arbitration,” Nevada Law Journal, Forthcoming. In his article, Professor Garcia Sanchez responds to another research paper discussing a perceived lack of distinction between public...
February 2, 2018
Guillermo Jose Garcia Sanchez, Associate Professor of Law at the Texas A&M University School of Law and Affiliated Scholar at the University of Houston’s Center for U.S. and Mexican Law, has published “The Blurring of the Public/Private Distinction or the Collapse of a Category? The Story of Investment Arbitration,” Nevada Law Journal, Forthcoming. In his article, Professor Garcia Sanchez responds to another research paper discussing a perceived lack of distinction between public...
Applying the Lessons of International Commercial Arbitration to International Commercial Mediation: A Dispute System Design Analysis
February 1, 2018
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, has published “Applying the Lessons of International Commercial Arbitration to International Commercial Mediation: A Dispute System Design Analysis,” Book chapter in Mediation in International Commercial and Investment Disputes (Oxford University Press, Catharine Titi and Katia Fach Gomez , eds.) 2018 Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2018-01. Here...
February 1, 2018
S.I. Strong, Manley O. Hudson Professor of Law at the University of Missouri School of Law, has published “Applying the Lessons of International Commercial Arbitration to International Commercial Mediation: A Dispute System Design Analysis,” Book chapter in Mediation in International Commercial and Investment Disputes (Oxford University Press, Catharine Titi and Katia Fach Gomez , eds.) 2018 Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2018-01. Here...
Are Arbitration Agreements With Attorneys Unenforceable? Maine Says Yes (Mostly).
January 31, 2018
While I was busy writing deep thoughts about arbitration at the end of 2017 (see hereand here), courts around the country rudely kept churning out new arbitration opinions. Hmph. So, I have some catching up to do. I start with one that has most captured my attention, Snow v. Bernstein, Shur, Sawyer & Nelson, ___ A.3d ___, 2017 WL 6520900 (Me. Dec. 21, 2017). It finds an arbitration agreement between a law firm and its client unenforceable, because the law firm did not specifically...
January 31, 2018
While I was busy writing deep thoughts about arbitration at the end of 2017 (see hereand here), courts around the country rudely kept churning out new arbitration opinions. Hmph. So, I have some catching up to do. I start with one that has most captured my attention, Snow v. Bernstein, Shur, Sawyer & Nelson, ___ A.3d ___, 2017 WL 6520900 (Me. Dec. 21, 2017). It finds an arbitration agreement between a law firm and its client unenforceable, because the law firm did not specifically...
