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Arbitration
After a Business Fails to Pay AAA Fees, N.J. Consumers May Litigate
June 6, 2017
An emerging trend in arbitration is the refusal of a party to pay its share of the fees and costs in accordance with either the arbitration agreement or the governing administrative rules. Typically, the only option available to a paying party who wants arbitration to move forward is to pay the nonpaying party's share of the fees and costs. But what if the paying party is a consumer? Relying for guidance on decisions rendered by the Ninth and Tenth Circuits, the New Jersey Supreme Court now offers...
June 6, 2017
An emerging trend in arbitration is the refusal of a party to pay its share of the fees and costs in accordance with either the arbitration agreement or the governing administrative rules. Typically, the only option available to a paying party who wants arbitration to move forward is to pay the nonpaying party's share of the fees and costs. But what if the paying party is a consumer? Relying for guidance on decisions rendered by the Ninth and Tenth Circuits, the New Jersey Supreme Court now offers...
Fifth Circuit Dismisses Appeal Over Arbitrator Selection for Lack of Subject Matter Jurisdiction
June 6, 2017
The United States Court of Appeals for the Fifth Circuit has dismissed a company’s appeal from a lower court’s order confirming the selection of a panel of arbitrators due to lack of subject matter jurisdiction. In Bordelon Marine, LLC v. Bibby Subsea ROV, LLC, No. 16-30847 (5th Cir. Apr. 14, 2017), two companies, Bordelon and Bibby, were ordered to arbitrate a contract dispute related to the charter of an offshore vessel. Before the dispute could be arbitrated, however, the two companies...
June 6, 2017
The United States Court of Appeals for the Fifth Circuit has dismissed a company’s appeal from a lower court’s order confirming the selection of a panel of arbitrators due to lack of subject matter jurisdiction. In Bordelon Marine, LLC v. Bibby Subsea ROV, LLC, No. 16-30847 (5th Cir. Apr. 14, 2017), two companies, Bordelon and Bibby, were ordered to arbitrate a contract dispute related to the charter of an offshore vessel. Before the dispute could be arbitrated, however, the two companies...
Case Goes to Arbitration, Case Stays in Arbitration
June 5, 2017
The district court in Salas v. GE Oil & Gas ordered arbitration in 2014 and dismissed the case. The arbitration did not proceed. Each side blamed the other; the district court had a status conference in 2016; and afterwards, withdrew its earlier order and reopened the case. The Fifth Circuit found that the district court lacked jurisdiction to do so, as its 2016 order “did not fall within the narrow scope of th[e] ancillary jurisdiction” provided by section 4 of the FAA: “The court neither...
June 5, 2017
The district court in Salas v. GE Oil & Gas ordered arbitration in 2014 and dismissed the case. The arbitration did not proceed. Each side blamed the other; the district court had a status conference in 2016; and afterwards, withdrew its earlier order and reopened the case. The Fifth Circuit found that the district court lacked jurisdiction to do so, as its 2016 order “did not fall within the narrow scope of th[e] ancillary jurisdiction” provided by section 4 of the FAA: “The court neither...
Thoughts on Building an Unassailable Arbitration Award
June 2, 2017
Drafting a clear, reasoned arbitration award is a process rather than an event; it takes time. Thoughtful execution...
June 2, 2017
Drafting a clear, reasoned arbitration award is a process rather than an event; it takes time. Thoughtful execution...
Did the Seventh Circuit Expand the Grounds for Vacating an Arbitration Award?
June 2, 2017
A court has an extremely circumscribed role in an action to vacate an arbitration award. Indeed, the U.S. Supreme Court has declared that even if a court is convinced that an arbitrator committed a grave error in applying the terms of a contract, it should not vacate the resulting award if the arbitrator even arguably applied the contract provisions. In Bankers Life & Casualty Insurance Co. v. CBRE, Inc., 830 F.3d 729 (7th Cir. 2016), a divided Seventh Circuit held that an arbitration...
June 2, 2017
A court has an extremely circumscribed role in an action to vacate an arbitration award. Indeed, the U.S. Supreme Court has declared that even if a court is convinced that an arbitrator committed a grave error in applying the terms of a contract, it should not vacate the resulting award if the arbitrator even arguably applied the contract provisions. In Bankers Life & Casualty Insurance Co. v. CBRE, Inc., 830 F.3d 729 (7th Cir. 2016), a divided Seventh Circuit held that an arbitration...
Arbitration and “Appellate” Review: Competing Legal Principles
June 1, 2017
Construction attorneys and their clients face a difficult decision when drafting contracts for large and substantive projects: whether to agree to binding arbitration or to stay within the court system to resolve any disputes. While binding arbitration is often touted as a method that should result in the faster and cheaper resolution of a dispute (and a method that allows arbitrators to be selected for their industry-specific knowledge), arbitration has begun to mimic litigation by including...
June 1, 2017
Construction attorneys and their clients face a difficult decision when drafting contracts for large and substantive projects: whether to agree to binding arbitration or to stay within the court system to resolve any disputes. While binding arbitration is often touted as a method that should result in the faster and cheaper resolution of a dispute (and a method that allows arbitrators to be selected for their industry-specific knowledge), arbitration has begun to mimic litigation by including...
Free-Market Failure: The Wells Fargo Arbitration Clause Example
May 31, 2017
Jeff Sovern, Professor of Law at St. John’s University School of Law, has written “Free-Market Failure: The Wells Fargo Arbitration Clause Example,” 70 Rutgers U.L. Rev. (Forthcoming); St. John’s Legal Studies Research Paper No. 17-0004. In his journal article, Professor Sovern examines the availability of class arbitration in the context of financial institutions. Here is the abstract: In September 2016, regulators charged Wells Fargo with opening millions of unauthorized accounts...
May 31, 2017
Jeff Sovern, Professor of Law at St. John’s University School of Law, has written “Free-Market Failure: The Wells Fargo Arbitration Clause Example,” 70 Rutgers U.L. Rev. (Forthcoming); St. John’s Legal Studies Research Paper No. 17-0004. In his journal article, Professor Sovern examines the availability of class arbitration in the context of financial institutions. Here is the abstract: In September 2016, regulators charged Wells Fargo with opening millions of unauthorized accounts...
Maryland’s Highest Court Finds Small Claims Court Action Waived Right To Arbitrate
May 30, 2017
It is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause? The court’s answer was yes, if the claims are related. In Cain v. Midland Funding, LLC, __ A.3d__, 2017 WL 1101804 (Md. Mar. 24, 2017), the lender pursued its collection action against the credit card holder...
May 30, 2017
It is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause? The court’s answer was yes, if the claims are related. In Cain v. Midland Funding, LLC, __ A.3d__, 2017 WL 1101804 (Md. Mar. 24, 2017), the lender pursued its collection action against the credit card holder...
DC Circuit Vacates Arbitration Award on Public Policy Grounds
May 30, 2017
In National Railroad Passenger Corporation v. Fraternal Order of Police, Lodge 189, No. 16-7004 (DC Cir., April 28, 2017), the United States Court of Appeals for the District of Columbia Circuit affirmed a trial court’s order vacating an arbitration award based on public policy grounds. The 2-1 decision involves a collective bargaining agreement and particular jurisprudence under the U.S. Railway Labor Act that permits vacatur of arbitration awards if a contract provision “is contrary to ‘law...
May 30, 2017
In National Railroad Passenger Corporation v. Fraternal Order of Police, Lodge 189, No. 16-7004 (DC Cir., April 28, 2017), the United States Court of Appeals for the District of Columbia Circuit affirmed a trial court’s order vacating an arbitration award based on public policy grounds. The 2-1 decision involves a collective bargaining agreement and particular jurisprudence under the U.S. Railway Labor Act that permits vacatur of arbitration awards if a contract provision “is contrary to ‘law...
Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits
May 29, 2017
Michael Z. Green, Professor of Law at Texas A&M University School of Law, and Kyle Carney, Independent, have published, “Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?,” New York University Journal of Legislation and Public Policy, Forthcoming. In their journal article, the authors discuss recent court challenges to labor arbitration rulings made on behalf of National Football League...
May 29, 2017
Michael Z. Green, Professor of Law at Texas A&M University School of Law, and Kyle Carney, Independent, have published, “Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?,” New York University Journal of Legislation and Public Policy, Forthcoming. In their journal article, the authors discuss recent court challenges to labor arbitration rulings made on behalf of National Football League...
