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Arbitration
California Invalidates Waiver of Public Injunctive Relief In Consumer Arbitration Clause
April 25, 2017
Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement. (Btw, here’s a nice SCOTUSblog piece on Gorsuch’s arbitration decisions.) In the meantime, California’s high court has decided a similar arbitration issue that seems likely to be the subject of a future cert petition. In McGill v. Citibank, issued April...
April 25, 2017
Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement. (Btw, here’s a nice SCOTUSblog piece on Gorsuch’s arbitration decisions.) In the meantime, California’s high court has decided a similar arbitration issue that seems likely to be the subject of a future cert petition. In McGill v. Citibank, issued April...
Managing Construction Conflict: Unfinished Revolution, Continuing Evolution
April 25, 2017
Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly...
April 25, 2017
Two decades ago many believed we were experiencing a “Quiet Revolution” in the way conflict was managed, and nowhere was this more true than in the construction sector. Frustration with the costs, delays, risks and limitations of lawyer-driven adjudication prompted growing attention to informal methods aimed at early resolution of disputes, with those who “owned” the dispute back in the driver’s seat. A smorgasbord of options for preventing, managing and resolving conflict was suddenly...
A Primer for Enforcement in the U.S. of Foreign-Issued Arbitration Awards
April 24, 2017
In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”). In an effort to clear up confusion, the court...
April 24, 2017
In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 2017 U.S. App. LEXIS 3815 (2d Cir. Mar. 2, 2017), the U.S. Court of Appeals for the Second Circuit provides something of a primer regarding enforcement in the United States of a foreign-issued arbitral award, which is subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and Chapter 2 of the Federal Arbitration Act (“FAA”). In an effort to clear up confusion, the court...
FINRA Arbitration Panel Awards Investor $1 Million in Damages Over Broker’s Misleading Statements
April 24, 2017
A Financial Industry Regulatory Authority (“FINRA”) arbitration panel has reportedly awarded an investor more than $1 million due to a securities broker’s misleading statements. In FINRA case number 16-00226, Grace Huitt purchased a variable annuity from Oklahoma-based Wilbanks Securities in 2008. At the time of her purchase, a Wilbanks Securities broker purportedly promised Huitt a minimum return on her investment of seven percent. About four years later, Huitt sold the ING Landmark...
April 24, 2017
A Financial Industry Regulatory Authority (“FINRA”) arbitration panel has reportedly awarded an investor more than $1 million due to a securities broker’s misleading statements. In FINRA case number 16-00226, Grace Huitt purchased a variable annuity from Oklahoma-based Wilbanks Securities in 2008. At the time of her purchase, a Wilbanks Securities broker purportedly promised Huitt a minimum return on her investment of seven percent. About four years later, Huitt sold the ING Landmark...
Is “Class Arbitration” an Oxymoron?
April 21, 2017
“Class arbitration” — the utilization of a class action mechanism in an arbitration proceeding — is considered by some...
April 21, 2017
“Class arbitration” — the utilization of a class action mechanism in an arbitration proceeding — is considered by some...
Judge Gorsuch’s Arbitration Jurisprudence
April 21, 2017
Gorsuch stressed in his dissent in Ragab that he does not “believe conflicting contract provisions might never render an arbitration agreement void for lack of a meeting of the minds.” In Genberg v. Porter, in 2014, Gorsuch wrote a panel opinion imposing just such an outcome, ruling that the defendants, members of the board of a company from which the plaintiff had been fired, were not bound by the arbitration agreement because they had not signed it. One of the two other arbitration cases in which...
April 21, 2017
Gorsuch stressed in his dissent in Ragab that he does not “believe conflicting contract provisions might never render an arbitration agreement void for lack of a meeting of the minds.” In Genberg v. Porter, in 2014, Gorsuch wrote a panel opinion imposing just such an outcome, ruling that the defendants, members of the board of a company from which the plaintiff had been fired, were not bound by the arbitration agreement because they had not signed it. One of the two other arbitration cases in which...
Samsung Shut Out Of Arbitration In Recent Consumer Class Actions
April 17, 2017
Two federal circuit courts of appeals have recently found that documents Samsung included in boxes with consumer products did not effectively create an arbitration agreement. In both cases, the documents had titles indicating they related to safety and warranty information, and therefore were ruled insufficient to put consumers on notice of any obligation to arbitrate. In Noble v. Samsung Electronics America, Inc., 2017 WL 838269 (3d Cir. March 3, 2017), the putative class action complained...
April 17, 2017
Two federal circuit courts of appeals have recently found that documents Samsung included in boxes with consumer products did not effectively create an arbitration agreement. In both cases, the documents had titles indicating they related to safety and warranty information, and therefore were ruled insufficient to put consumers on notice of any obligation to arbitrate. In Noble v. Samsung Electronics America, Inc., 2017 WL 838269 (3d Cir. March 3, 2017), the putative class action complained...
The Impact of Mandatory Arbitration on the Common Law Regulation of Standard Terms in Consumer Contracts
April 14, 2017
James P. Nehf, Professor of Law and Cleon H. Foust Fellow at Indiana University’s Robert H. McKinney School of Law, has published “The Impact of Mandatory Arbitration on the Common Law Regulation of Standard Terms in Consumer Contracts,” 85 Geo. Wash. Law Review (2017). In his research paper, Professor Nehf examines how mandatory arbitration provisions may affect the common law regulation of standard terms in consumer contracts in the future. Here is the abstract: The focus of this paper...
April 14, 2017
James P. Nehf, Professor of Law and Cleon H. Foust Fellow at Indiana University’s Robert H. McKinney School of Law, has published “The Impact of Mandatory Arbitration on the Common Law Regulation of Standard Terms in Consumer Contracts,” 85 Geo. Wash. Law Review (2017). In his research paper, Professor Nehf examines how mandatory arbitration provisions may affect the common law regulation of standard terms in consumer contracts in the future. Here is the abstract: The focus of this paper...
New Jersey Says Non-Payment Of Arbitration Fees is Breach of Agreement
April 13, 2017
The New Jersey Supreme Court refused to allow a respondent to benefit from its refusal to pay arbitration fees in Roach v. BM Motoring, LLC, 2017 WL 931430 (NJ March 9, 2017). First, Ms. Jackson filed a demand for arbitration against a New Jersey car dealership with the AAA. The parties’ arbitration agreement required the dealership to “advance both party’s [sic] filing, service, administration, arbitrator, hearing or other fees, subject to reimbursement by decision of the arbitrator.”...
April 13, 2017
The New Jersey Supreme Court refused to allow a respondent to benefit from its refusal to pay arbitration fees in Roach v. BM Motoring, LLC, 2017 WL 931430 (NJ March 9, 2017). First, Ms. Jackson filed a demand for arbitration against a New Jersey car dealership with the AAA. The parties’ arbitration agreement required the dealership to “advance both party’s [sic] filing, service, administration, arbitrator, hearing or other fees, subject to reimbursement by decision of the arbitrator.”...
Third Circuit Goes On Formation Tour — Issues Arbitration Decisions Favoring Prisoners and Pistachio Buyers
April 12, 2017
In the past week, the Third Circuit has issued two important decisions on the formation of arbitration agreements. (Sing it Beyoncé! “Okay ladies, now let’s get in formation.”) In one, a class action was allowed to proceed in court because the defendant did not obtain explicit enough agreement to the arbitration, and in another an arbitration award was initially vacated due to questions about whether there had been an arbitration agreement at all. In James v. Global Tellink Corp.,...
April 12, 2017
In the past week, the Third Circuit has issued two important decisions on the formation of arbitration agreements. (Sing it Beyoncé! “Okay ladies, now let’s get in formation.”) In one, a class action was allowed to proceed in court because the defendant did not obtain explicit enough agreement to the arbitration, and in another an arbitration award was initially vacated due to questions about whether there had been an arbitration agreement at all. In James v. Global Tellink Corp.,...
