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Arbitration
U.S. Dept. of Ed. Reconsidering Regulation Banning Pre-Dispute Arbitration Agreements in Higher Education
June 21, 2017
On Wednesday, the United States Department of Education announced that it would postpone the Borrower Defense to Repayment (“BDR”) final regulation that was scheduled to become effective on July 1, 2017. Instead, the Department will establish new rulemaking committees on both the BDR and Gainful Employment regulations. A Department press release published last fall states the BDR final regulation bans all “pre-dispute arbitration agreements that prevent students from taking institutions...
June 21, 2017
On Wednesday, the United States Department of Education announced that it would postpone the Borrower Defense to Repayment (“BDR”) final regulation that was scheduled to become effective on July 1, 2017. Instead, the Department will establish new rulemaking committees on both the BDR and Gainful Employment regulations. A Department press release published last fall states the BDR final regulation bans all “pre-dispute arbitration agreements that prevent students from taking institutions...
State Supreme Courts Continue to Try to Chip Away at FAA Preemption; SCOTUS Is Not Amused
June 21, 2017
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., does not contain an express preemption provision, nor was it intended to be the exclusive codified arbitration law in all circumstances. However, the United States Supreme Court has repeatedly taught that where the FAA applies, it is deemed to supersede state laws that are inconsistent with its provisions and purposes. Yet recent decisions by the highest courts of North Carolina and New Hampshire provide examples of continued efforts...
June 21, 2017
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., does not contain an express preemption provision, nor was it intended to be the exclusive codified arbitration law in all circumstances. However, the United States Supreme Court has repeatedly taught that where the FAA applies, it is deemed to supersede state laws that are inconsistent with its provisions and purposes. Yet recent decisions by the highest courts of North Carolina and New Hampshire provide examples of continued efforts...
Sixth Circuit Sides with Seventh, Ninth Circuits on Issue of Class Waivers Included in an Employer’s Arbitration Agreement
June 20, 2017
The United States Court of Appeals for the Sixth Circuit has ruled that an employer may not prohibit employees from pursuing...
June 20, 2017
The United States Court of Appeals for the Sixth Circuit has ruled that an employer may not prohibit employees from pursuing...
Sixth Circuit Adds to a Growing Circuit Split; SCOTUS to Decide Scope of Employees’ Arbitration Rights
June 20, 2017
In National Labor Relations Board v. Alternative Entertainment, Inc., No. 16-1385, 2017 WL 2297620 (6th Cir. May 26, 2017),...
June 20, 2017
In National Labor Relations Board v. Alternative Entertainment, Inc., No. 16-1385, 2017 WL 2297620 (6th Cir. May 26, 2017),...
“Class Arbitration”: The Current Law
June 20, 2017
Thus far the U.S. Supreme Court has addressed a few issues concerning “class arbitration,” including (1) the fundamental significance of the arbitration agreement; (2) the enforceability of a purported contractual waiver of class arbitration; and (3) the extent of and criteria for judicial review of an arbitrator’s award concerning the permissibility of class arbitration. On the other hand, the Supreme Court has not yet focused on the ultimate viability and enforceability, or the res judicata...
June 20, 2017
Thus far the U.S. Supreme Court has addressed a few issues concerning “class arbitration,” including (1) the fundamental significance of the arbitration agreement; (2) the enforceability of a purported contractual waiver of class arbitration; and (3) the extent of and criteria for judicial review of an arbitrator’s award concerning the permissibility of class arbitration. On the other hand, the Supreme Court has not yet focused on the ultimate viability and enforceability, or the res judicata...
Ware & Levinson on Arbitration Law
June 19, 2017
Congratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description: The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and...
June 19, 2017
Congratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description: The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and...
Implied Waiver of an Arbitration Clause Is a High Burden
June 13, 2017
A recent case out of Texas, Legoland Discovery Centre (Dallas), LLC v. Superior Builders, LLC, No. 02-16-00425-CV (behind...
June 13, 2017
A recent case out of Texas, Legoland Discovery Centre (Dallas), LLC v. Superior Builders, LLC, No. 02-16-00425-CV (behind...
Arbitration Waived by Litigation Conduct
June 13, 2017
Vine v. PLS Financial Services presents the infrequently-encountered waiver of arbitration rights by litigation conduct. PLS made a short-term loan to Vine; to obtain such a loan, a PLS customer must present a blank or post-dated check sufficient to cover the loan amount and a finance charge. PLS and Vine had a broad, general arbitration agreement. The Fifth Circuit found that PLS waived that right when it submitted inaccurate “worthless check affidavits” under Texas law after Vine defaulted....
June 13, 2017
Vine v. PLS Financial Services presents the infrequently-encountered waiver of arbitration rights by litigation conduct. PLS made a short-term loan to Vine; to obtain such a loan, a PLS customer must present a blank or post-dated check sufficient to cover the loan amount and a finance charge. PLS and Vine had a broad, general arbitration agreement. The Fifth Circuit found that PLS waived that right when it submitted inaccurate “worthless check affidavits” under Texas law after Vine defaulted....
Litigation Funding: Are These Costs Recoverable in Arbitration?
June 8, 2017
The use of third parties to fund plaintiffs' legal and litigation expenses ("litigation funding") is becoming an increasingly common practice in Europe and the United States, and has been used in Australia for many years. As the litigation funding industry has grown and evolved, it is becoming more common in arbitration. Indeed, there are some litigation funding companies that limit their investments to cases that are being arbitrated rather than tried in a country's court system. Thus, arbitrators...
June 8, 2017
The use of third parties to fund plaintiffs' legal and litigation expenses ("litigation funding") is becoming an increasingly common practice in Europe and the United States, and has been used in Australia for many years. As the litigation funding industry has grown and evolved, it is becoming more common in arbitration. Indeed, there are some litigation funding companies that limit their investments to cases that are being arbitrated rather than tried in a country's court system. Thus, arbitrators...
Arbitration is Faster to Resolution than Court—and the Difference can be Assessed Monetarily
June 6, 2017
A groundbreaking study by the economic research firm Micronomics quantifies the significant time differences between litigation and AAA arbitration from initiation of a case to the final determination—and concludes that arbitration accelerates the pace of dispute resolution. Trial Time vs. Arbitration Time Federal courts take much longer to resolve cases by trial and appeal than arbitration by the AAA. These differences are systematic across almost all states and sections of the country and are especially...
June 6, 2017
A groundbreaking study by the economic research firm Micronomics quantifies the significant time differences between litigation and AAA arbitration from initiation of a case to the final determination—and concludes that arbitration accelerates the pace of dispute resolution. Trial Time vs. Arbitration Time Federal courts take much longer to resolve cases by trial and appeal than arbitration by the AAA. These differences are systematic across almost all states and sections of the country and are especially...
