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Arbitration
NLRB Files Responsive Brief in Murphy Oil Case
September 6, 2017
In October, the United States Supreme Court will hear oral argument in the consolidated cases of National Labor Relations Board v. Murphy Oil USA, No. 16-307 (5th Cir., October 26, 2015), Epic Systems Corp. v. Lewis, No. 16-285 (7th Cir., May 26, 2016), and Ernst & Young LLP v. Morris, No. 16-300 (9th Cir., August 22, 2016). The cases present a split among circuits regarding whether a collective action ban included in an employment contract violates the National Labor Relations Act (“NLRA”). Last...
September 6, 2017
In October, the United States Supreme Court will hear oral argument in the consolidated cases of National Labor Relations Board v. Murphy Oil USA, No. 16-307 (5th Cir., October 26, 2015), Epic Systems Corp. v. Lewis, No. 16-285 (7th Cir., May 26, 2016), and Ernst & Young LLP v. Morris, No. 16-300 (9th Cir., August 22, 2016). The cases present a split among circuits regarding whether a collective action ban included in an employment contract violates the National Labor Relations Act (“NLRA”). Last...
SCOTUS Asked to Consider Order Denying Arbitration in Texas Ponzi Scheme Case
September 5, 2017
Last week, a group of former Ponzi scheme financial advisers asked the United States Supreme Court to overturn the Fifth Circuit’s decision affirming a lower court’s order denying their motion to compel arbitration. The former Stanford Group employees argue in their petition for certiorari that the Fifth Circuit’s holding created a circuit split that should be resolved by the nation’s highest court. In addition, the former financial advisers reportedly claim their request for arbitration...
September 5, 2017
Last week, a group of former Ponzi scheme financial advisers asked the United States Supreme Court to overturn the Fifth Circuit’s decision affirming a lower court’s order denying their motion to compel arbitration. The former Stanford Group employees argue in their petition for certiorari that the Fifth Circuit’s holding created a circuit split that should be resolved by the nation’s highest court. In addition, the former financial advisers reportedly claim their request for arbitration...
Online Arbitration as a Remedy for Crowdfunding Fraud
August 31, 2017
C. Steven Bradford, Henry M. Grether, Jr. Professor of Law at the University of Nebraska College of Law, has published “Online Arbitration as a Remedy for Crowdfunding Fraud,” Florida State University Law Review, Forthcoming. In his journal article, Professor Bradford discusses creating a simplified online arbitration remedy to be used in situations where crowdfunding fraud has occurred. Here is the abstract: It is now legal to see securities to the general public in unregistered, crowdfunded...
August 31, 2017
C. Steven Bradford, Henry M. Grether, Jr. Professor of Law at the University of Nebraska College of Law, has published “Online Arbitration as a Remedy for Crowdfunding Fraud,” Florida State University Law Review, Forthcoming. In his journal article, Professor Bradford discusses creating a simplified online arbitration remedy to be used in situations where crowdfunding fraud has occurred. Here is the abstract: It is now legal to see securities to the general public in unregistered, crowdfunded...
What In-House Counsel Need To Know About Their Form Arbitration Clauses
August 31, 2017
Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical. Careful review of that clause surely must be a component of your enterprise’s risk analysis. Here are 10 basic considerations that will help to guide that review. 1. How Will The Arbitration Be Managed? [See...
August 31, 2017
Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical. Careful review of that clause surely must be a component of your enterprise’s risk analysis. Here are 10 basic considerations that will help to guide that review. 1. How Will The Arbitration Be Managed? [See...
W. D. of Pennsylvania Addresses Optional Appeal to Second Arbitration Tribunal
August 30, 2017
It is very rare to see a court decision addressing whether an optional appeal to a second arbitration tribunal is available under the applicable arbitration agreement and arbitration rules to a party disappointed by a first tribunal’s arbitration award. In DeMuth v. Navient Solutions, LLC, Civ. Action No. 17-675 (W.D. Pa., August 15, 2017), though, Judge Nora Berry Fischer of the US District Court for the Western District of Pennsylvania ruled that the question of whether an appeal of an American...
August 30, 2017
It is very rare to see a court decision addressing whether an optional appeal to a second arbitration tribunal is available under the applicable arbitration agreement and arbitration rules to a party disappointed by a first tribunal’s arbitration award. In DeMuth v. Navient Solutions, LLC, Civ. Action No. 17-675 (W.D. Pa., August 15, 2017), though, Judge Nora Berry Fischer of the US District Court for the Western District of Pennsylvania ruled that the question of whether an appeal of an American...
Second Circuit Reverses Judge Rakoff in Uber Arbitration Decision
August 30, 2017
In a highly-anticipated decision (at least for those in the arbitration world), the Second Circuit yesterday vacated the district court’s opinion in Meyer v. Kalanick, 200 F. Supp.3d 408 (S.D.N.Y. 2016), which was authored by the well-known Judge Jed Rakoff. The Second Circuit, in Meyer v. Uber Technologies, 2017 WL 3526682 (Aug. 17, 2017), found that plaintiffs, a putative class of Uber riders asserting price-fixing claims against Uber and its former CEO Travis Kalanick, received sufficient...
August 30, 2017
In a highly-anticipated decision (at least for those in the arbitration world), the Second Circuit yesterday vacated the district court’s opinion in Meyer v. Kalanick, 200 F. Supp.3d 408 (S.D.N.Y. 2016), which was authored by the well-known Judge Jed Rakoff. The Second Circuit, in Meyer v. Uber Technologies, 2017 WL 3526682 (Aug. 17, 2017), found that plaintiffs, a putative class of Uber riders asserting price-fixing claims against Uber and its former CEO Travis Kalanick, received sufficient...
5th Circuit Once Again Upholds Class Waiver Absent an Arbitration Agreement
August 29, 2017
The United States Court of Appeals for the Fifth Circuit has once again overturned a National Labor Relations Board (“NLRB”)...
August 29, 2017
The United States Court of Appeals for the Fifth Circuit has once again overturned a National Labor Relations Board (“NLRB”)...
Uber Uses Arbitration (And Clean Design) To Put Brakes On Consumer Class Action
August 29, 2017
Last Thursday, the Second Circuit found that the arbitration agreement in Uber’s Terms of Service was conspicuous enough to be binding and enforceable. As a result, the claims of a putative class of consumers will be dismissed unless they can show that Uber waived its right to arbitrate their claims. Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017). [This proves my point from last week, that formation is one of the big issues this year in arbitration law.] For...
August 29, 2017
Last Thursday, the Second Circuit found that the arbitration agreement in Uber’s Terms of Service was conspicuous enough to be binding and enforceable. As a result, the claims of a putative class of consumers will be dismissed unless they can show that Uber waived its right to arbitrate their claims. Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017). [This proves my point from last week, that formation is one of the big issues this year in arbitration law.] For...
Arbitrability And Tax
August 28, 2017
William W. Park (Boston University), Arbitrability and Tax: Although arguments exist that fiscal disputes should remain beyond private adjudication, implicating as they do the sovereign prerogative of revenue raising, the practice proves very much to the contrary. Arbitration of tax-related disputes proves very much a reality despite doctrinal objections. The amenability of such disputes to arbitration remains highly fact-intensive, with no hard-and-fast rule prohibiting all tax arbitration per se, while...
August 28, 2017
William W. Park (Boston University), Arbitrability and Tax: Although arguments exist that fiscal disputes should remain beyond private adjudication, implicating as they do the sovereign prerogative of revenue raising, the practice proves very much to the contrary. Arbitration of tax-related disputes proves very much a reality despite doctrinal objections. The amenability of such disputes to arbitration remains highly fact-intensive, with no hard-and-fast rule prohibiting all tax arbitration per se, while...
Misclassification in the Sharing Economy: It’s the Arbitration Agreements
August 25, 2017
Elizabeth Chika Tippett, Associate Professor and Conflict & Dispute Resolution Program Faculty Co-Director at the University of Oregon School of Law, and Bridget Schaaff, University of Oregon School of Law, have published “Misclassification in the Sharing Economy: It’s the Arbitration Agreements,” Rutgers Law Review, Forthcoming. In their journal article, the authors study the changes made to several companies’ Terms of Service agreements following the Supreme Court’s decisions...
August 25, 2017
Elizabeth Chika Tippett, Associate Professor and Conflict & Dispute Resolution Program Faculty Co-Director at the University of Oregon School of Law, and Bridget Schaaff, University of Oregon School of Law, have published “Misclassification in the Sharing Economy: It’s the Arbitration Agreements,” Rutgers Law Review, Forthcoming. In their journal article, the authors study the changes made to several companies’ Terms of Service agreements following the Supreme Court’s decisions...
