Arbitration
Un-Vacated: Arbitration Awards Get Whiplash
January 30, 2018
Two cases recently fit in one of my favorite categories: those awards that get “un-vacated.” These cases went through arbitration, had that arbitration award vacated by a district court, only to have the award later resurrected by an appellate court. In today’s edition, the whiplash happens in both state and federal court. In Caffey v. Lees, 2018 WL 327260 (R.I. Jan. 9, 2018), Lees was the winner after bringing a personal injury case in arbitration. He was awarded nearly $200,000....
January 30, 2018
Two cases recently fit in one of my favorite categories: those awards that get “un-vacated.” These cases went through arbitration, had that arbitration award vacated by a district court, only to have the award later resurrected by an appellate court. In today’s edition, the whiplash happens in both state and federal court. In Caffey v. Lees, 2018 WL 327260 (R.I. Jan. 9, 2018), Lees was the winner after bringing a personal injury case in arbitration. He was awarded nearly $200,000....
Arbitration: “except for actions seeking injunctive relief” means – just that.
January 24, 2018
The issue was whether arbitrability was for the courts to decide or the arbitrator. The Fifth Circuit applied “the two-step inquiry adopted in Douglas v. Regions Bank [, 757 F.3d 460 (5th Cir. 2014),] under which the first question is whether the parties “clearly and unmistakably” intended to delegate the question of arbitrability to an arbitrator. Finding that “the interaction between the AAA Rules and the [injunctive relief] carve-out is at best ambiguous,” the Court chose not to resolve...
January 24, 2018
The issue was whether arbitrability was for the courts to decide or the arbitrator. The Fifth Circuit applied “the two-step inquiry adopted in Douglas v. Regions Bank [, 757 F.3d 460 (5th Cir. 2014),] under which the first question is whether the parties “clearly and unmistakably” intended to delegate the question of arbitrability to an arbitrator. Finding that “the interaction between the AAA Rules and the [injunctive relief] carve-out is at best ambiguous,” the Court chose not to resolve...
Maine’s Highest Court Invalidates Arbitration Clause Using Fiduciary Defense
January 23, 2018
Relying on the fiduciary duty in the attorney-client relationship as well as the policies of Maine’s legal ethics code, Maine’s highest court found that attorneys have a duty to explain and make sure a client understands the difference between litigation and arbitration in order for an arbitration agreement to be enforceable in this setting. See Snow v. Bernstein, Shur, Sawyer & Nelson, P.A., No. 17-54 (Maine Dec. 21, 2017) (click here for a copy of the decision). Because the attorney...
January 23, 2018
Relying on the fiduciary duty in the attorney-client relationship as well as the policies of Maine’s legal ethics code, Maine’s highest court found that attorneys have a duty to explain and make sure a client understands the difference between litigation and arbitration in order for an arbitration agreement to be enforceable in this setting. See Snow v. Bernstein, Shur, Sawyer & Nelson, P.A., No. 17-54 (Maine Dec. 21, 2017) (click here for a copy of the decision). Because the attorney...
Ninth Circuit Addresses Circuit Split Regarding Arbitral Discovery
January 18, 2018
The Ninth Circuit recently discussed a circuit split in the context of subpoena powers and discovery under the FAA in the case of CVS Health Corporation v. Vividus, LLC, No. 16-16187 (9th Cir. Dec. 21, 2017) (click here for a copy of the decision). Section 7 of the FAA generally grants arbitrators the authority to subpoena witnesses for a hearing, including the bringing of relevant documents to the hearing, and if a witness refuses to honor the subpoena, a district court has authority to enforce...
January 18, 2018
The Ninth Circuit recently discussed a circuit split in the context of subpoena powers and discovery under the FAA in the case of CVS Health Corporation v. Vividus, LLC, No. 16-16187 (9th Cir. Dec. 21, 2017) (click here for a copy of the decision). Section 7 of the FAA generally grants arbitrators the authority to subpoena witnesses for a hearing, including the bringing of relevant documents to the hearing, and if a witness refuses to honor the subpoena, a district court has authority to enforce...
Ninth Circuit Limits the FAA in a Case with Potentially Far-Reaching Implications
January 17, 2018
“Sign this contact, which contains an arbitration clause, and pay up, or you’re going to jail!” Consumers in California faced this situation, which was addressed by the Ninth Circuit this week in a case called Breazeale v. Victim Services, Inc., No. 15-16549 (9th Cir. Dec. 27, 2017) (click here for a copy of the opinion). I was involved as an amicus in this case. The defendants were basically collections agencies working together with local district attorneys to help administer a deferred...
January 17, 2018
“Sign this contact, which contains an arbitration clause, and pay up, or you’re going to jail!” Consumers in California faced this situation, which was addressed by the Ninth Circuit this week in a case called Breazeale v. Victim Services, Inc., No. 15-16549 (9th Cir. Dec. 27, 2017) (click here for a copy of the opinion). I was involved as an amicus in this case. The defendants were basically collections agencies working together with local district attorneys to help administer a deferred...
SCOTUS Declines to Review $455 Million International Arbitration Award in Biotech Patent Dispute
January 16, 2018
The United States Supreme Court has declined to consider whether an international arbitration tribunal’s award in a breach of contract and patent infringement lawsuit should be overturned. In Dow Agrosciences, LLC, et al. v. Bayer Cropscience AG, et al., Nos. 2016-1530 and 2016-1623 (March 1, 2017), a foreign corporation, Bayer, entered into a licensing agreement with Delaware-based Dow Agrosciences related to several of Bayer’s patented biotechnologies. More than a decade later, Bayer...
January 16, 2018
The United States Supreme Court has declined to consider whether an international arbitration tribunal’s award in a breach of contract and patent infringement lawsuit should be overturned. In Dow Agrosciences, LLC, et al. v. Bayer Cropscience AG, et al., Nos. 2016-1530 and 2016-1623 (March 1, 2017), a foreign corporation, Bayer, entered into a licensing agreement with Delaware-based Dow Agrosciences related to several of Bayer’s patented biotechnologies. More than a decade later, Bayer...
Legislating for an Effective and Legitimate System of Online Consumer Arbitration
January 9, 2018
This chapter addresses the conflict between the restrictive and negative view often taken towards consumer arbitration and the supportive and positive view often taken towards ODR by arguing that a properly designed system of online consumer arbitration can fulfil the promise of consumer arbitration while avoiding its greatest risks. After clarifying what is meant by the term “online arbitration” and addressing the important differences that exist between commercial arbitration and consumer arbitration,...
January 9, 2018
This chapter addresses the conflict between the restrictive and negative view often taken towards consumer arbitration and the supportive and positive view often taken towards ODR by arguing that a properly designed system of online consumer arbitration can fulfil the promise of consumer arbitration while avoiding its greatest risks. After clarifying what is meant by the term “online arbitration” and addressing the important differences that exist between commercial arbitration and consumer arbitration,...
Ninth Circuit Holds Arbitration Is Not State Action
January 8, 2018
In Roberts v. AT&T Mobility, No. 16-16915 (9th Cir. Dec. 11, 2017) (click here for a copy of the decision), the Ninth Circuit quickly dismissed a First Amendment challenge to a consumer arbitration by finding “[t]here is no state action here.” The plaintiffs filed a class action alleging that AT&T falsely advertised their phone service as “unlimited,” while at the same slowing down data speeds or “throttling.” In response to AT&T’s motion to compel arbitration, the plaintiffs...
January 8, 2018
In Roberts v. AT&T Mobility, No. 16-16915 (9th Cir. Dec. 11, 2017) (click here for a copy of the decision), the Ninth Circuit quickly dismissed a First Amendment challenge to a consumer arbitration by finding “[t]here is no state action here.” The plaintiffs filed a class action alleging that AT&T falsely advertised their phone service as “unlimited,” while at the same slowing down data speeds or “throttling.” In response to AT&T’s motion to compel arbitration, the plaintiffs...
Mandatory Treaty Application in Arbitration
January 5, 2018
Ulrich G. Schroeter (University of Basel - Faculty of Law) has posted Mandatory Private Treaty Application? On the Alleged Duty of Arbitrators to Apply International Conventions on SSRN. Here is the abstract: International arbitration, an institution that Pierre Karrer has shaped and influenced through his practical work as a leading international arbitrator as well as through his scholarly writings, aims at the peaceful settlement of disputes by practical, foreseeable and reasonably fast decisions,...
January 5, 2018
Ulrich G. Schroeter (University of Basel - Faculty of Law) has posted Mandatory Private Treaty Application? On the Alleged Duty of Arbitrators to Apply International Conventions on SSRN. Here is the abstract: International arbitration, an institution that Pierre Karrer has shaped and influenced through his practical work as a leading international arbitrator as well as through his scholarly writings, aims at the peaceful settlement of disputes by practical, foreseeable and reasonably fast decisions,...
Wisconsin Federal Court Confirms Class Arbitration Award Ahead of SCOTUS Decision
January 5, 2018
As much of the nation eagerly anticipates a pending United States Supreme Court ruling regarding whether a collective action ban included in an employer’s arbitration agreement is lawful under the National Labor Relations Act, a Wisconsin federal court has decided to uphold a class arbitration award in a wage and hour case. In Herrington v. Waterstone Mortgage Corp., No. 11-cv-779-bbc (W.D. Wisconsin, December 4, 2017), a loan officer, Herrington, filed a proposed collective action lawsuit...
January 5, 2018
As much of the nation eagerly anticipates a pending United States Supreme Court ruling regarding whether a collective action ban included in an employer’s arbitration agreement is lawful under the National Labor Relations Act, a Wisconsin federal court has decided to uphold a class arbitration award in a wage and hour case. In Herrington v. Waterstone Mortgage Corp., No. 11-cv-779-bbc (W.D. Wisconsin, December 4, 2017), a loan officer, Herrington, filed a proposed collective action lawsuit...
