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Arbitration
What’s in a Name?: Defining Arbitration Across the Circuits
August 23, 2016
What is “arbitration”? Although courts often use and apply the word, rarely do they stop to define it. While the FAA concerns agreements to “settle by arbitration a controversy,” the FAA does not define “arbitration,” leaving the question to the courts. Lacking definitive guidance from the U.S. Supreme Court, two lines of cases have developed among the U.S. Courts of Appeals. The split can be traced back to AMF Inc. v. Brunswick Corp., where bowling lane companies agreed to submit...
August 23, 2016
What is “arbitration”? Although courts often use and apply the word, rarely do they stop to define it. While the FAA concerns agreements to “settle by arbitration a controversy,” the FAA does not define “arbitration,” leaving the question to the courts. Lacking definitive guidance from the U.S. Supreme Court, two lines of cases have developed among the U.S. Courts of Appeals. The split can be traced back to AMF Inc. v. Brunswick Corp., where bowling lane companies agreed to submit...
Is Refusal To Pay Fees A Way Out Of Arbitration?
August 22, 2016
The 9th Circuit recently allowed a claimant to proceed in court after her arbitration had been terminated due to her failure to pay half the arbitration fees. Tillman v. Tillman, __ F.3d __, 2016 WL 3343785 (9th Cir. June 15, 2016). The case involved a client’s malpractice claim against her lawyers, which was stayed by the federal court after the lawyers compelled it into arbitration. At some point in arbitration, the client was unable to pay the $18,562.50 the AAA required to continue...
August 22, 2016
The 9th Circuit recently allowed a claimant to proceed in court after her arbitration had been terminated due to her failure to pay half the arbitration fees. Tillman v. Tillman, __ F.3d __, 2016 WL 3343785 (9th Cir. June 15, 2016). The case involved a client’s malpractice claim against her lawyers, which was stayed by the federal court after the lawyers compelled it into arbitration. At some point in arbitration, the client was unable to pay the $18,562.50 the AAA required to continue...
The Rules of the CAS Anti-Doping Division and the CAS Ad Hoc Division at the Olympic Games
August 21, 2016
Despina Mavromati, Managing Counsel and Head of Research & Mediation at the Court of Arbitration for Sport, has written a timely paper entitled, “The Rules of the CAS Anti-Doping Division and the CAS Ad Hoc Division at the Olympic Games.” In her working paper, Ms. Mavromati discusses the CAS’s role in the Rio Games. Here is the abstract: The Court of Arbitration for Sport (CAS) has been adjudicating on a variety of disputes arising on the occasion of the Olympic Games (OG) through...
August 21, 2016
Despina Mavromati, Managing Counsel and Head of Research & Mediation at the Court of Arbitration for Sport, has written a timely paper entitled, “The Rules of the CAS Anti-Doping Division and the CAS Ad Hoc Division at the Olympic Games.” In her working paper, Ms. Mavromati discusses the CAS’s role in the Rio Games. Here is the abstract: The Court of Arbitration for Sport (CAS) has been adjudicating on a variety of disputes arising on the occasion of the Olympic Games (OG) through...
Klerman on ICANN’s UDRP & Bias
August 17, 2016
Daniel M. Klerman (USC Gould School of Law) has posted Forum Selling and Domain-Name Disputes (Loyola University Chicago...
August 17, 2016
Daniel M. Klerman (USC Gould School of Law) has posted Forum Selling and Domain-Name Disputes (Loyola University Chicago...
Filing Criminal Complaint Did Not Waive Arbitration
August 12, 2016
In Cash Biz, LP v. Henry, the San Antonio Court of Appeals held that a party who filed a criminal complaint against another did not substantially invoke the judicial process, otherwise acting as a waiver of an agreement to arbitrate. In this case, a payday lender entered into a credit service agreement that contained a "waiver of jury trial and arbitration provision" with its borrowers. When the borrowers' checks were declined for insufficient funds, Cash Biz contacted the local district attorney's...
August 12, 2016
In Cash Biz, LP v. Henry, the San Antonio Court of Appeals held that a party who filed a criminal complaint against another did not substantially invoke the judicial process, otherwise acting as a waiver of an agreement to arbitrate. In this case, a payday lender entered into a credit service agreement that contained a "waiver of jury trial and arbitration provision" with its borrowers. When the borrowers' checks were declined for insufficient funds, Cash Biz contacted the local district attorney's...
Companies Hoisted by Arbitral Petards in Consumer Cases
August 11, 2016
A petard was a primitive bomb used to breach a wall. A bell-shaped iron casing would be filled with gunpowder and then affixed to the wall; a soldier would light the fuse, and the casing would direct the force of the blast toward the wall. Apparently, petards often exploded before the soldier could run away, hoisting (lifting) the soldier in the blast. Thus, the phrase "to hoist with his own petard" (Hamlet) means "to be harmed by one's plan to harm someone else". That's an apt description for what...
August 11, 2016
A petard was a primitive bomb used to breach a wall. A bell-shaped iron casing would be filled with gunpowder and then affixed to the wall; a soldier would light the fuse, and the casing would direct the force of the blast toward the wall. Apparently, petards often exploded before the soldier could run away, hoisting (lifting) the soldier in the blast. Thus, the phrase "to hoist with his own petard" (Hamlet) means "to be harmed by one's plan to harm someone else". That's an apt description for what...
Exodus from and Transformation of American Civil Litigation
August 9, 2016
The story of American federal civil litigation over the past half century is one of exodus and of transformation—exodus from and transformation of the traditional model of “court litigation.” The exodus has taken various paths, especially contractual arbitration. The Supreme Court has extended the Federal Arbitration Act to contracts of adhesion and to the adjudication of federal statutory rights. Thus arbitration has become mandatory for claims by consumers and employees. In approving this...
August 9, 2016
The story of American federal civil litigation over the past half century is one of exodus and of transformation—exodus from and transformation of the traditional model of “court litigation.” The exodus has taken various paths, especially contractual arbitration. The Supreme Court has extended the Federal Arbitration Act to contracts of adhesion and to the adjudication of federal statutory rights. Thus arbitration has become mandatory for claims by consumers and employees. In approving this...
Uber Can’t Force Arbitration Over Pricing Antitrust Claim
August 8, 2016
Uber Technologies Inc. can’t require a Connecticut customer accusing the company of price-fixing to resolve the fight in arbitration, a federal judge ruled in one of several cases challenging the ride-hailing company’s efforts to steer disputes of all kinds away from public courtrooms. U.S. District Judge Jed Rakoff in Manhattan said Friday that Uber’s online user agreement didn’t provide Spencer Meyer with sufficient notice of its arbitration policy for it to be binding. He denied Uber’s...
August 8, 2016
Uber Technologies Inc. can’t require a Connecticut customer accusing the company of price-fixing to resolve the fight in arbitration, a federal judge ruled in one of several cases challenging the ride-hailing company’s efforts to steer disputes of all kinds away from public courtrooms. U.S. District Judge Jed Rakoff in Manhattan said Friday that Uber’s online user agreement didn’t provide Spencer Meyer with sufficient notice of its arbitration policy for it to be binding. He denied Uber’s...
Arbitration Clauses: Gogo Internet Edition
August 4, 2016
The rise of Wi-Fi on airplanes means that you never have to be without the internet if you don't want to be...which also means that you never have to be without terms of use! A recent case out of the Eastern District of New York, Salameno v. Gogo Inc., 16-CV-0487 (behind paywall), reinforces that those terms of use are binding on you, and, as could probably be predicted, leads to the enforcement of an arbitration provision contained in them. In this case, the plaintiffs had purchased Gogo's in-flight...
August 4, 2016
The rise of Wi-Fi on airplanes means that you never have to be without the internet if you don't want to be...which also means that you never have to be without terms of use! A recent case out of the Eastern District of New York, Salameno v. Gogo Inc., 16-CV-0487 (behind paywall), reinforces that those terms of use are binding on you, and, as could probably be predicted, leads to the enforcement of an arbitration provision contained in them. In this case, the plaintiffs had purchased Gogo's in-flight...
Ninth Circuit Holds Client May Sue Former Law Firm After Mandatory Arbitration Was Terminated for Non-Payment
August 3, 2016
The United States Court of Appeals for the Ninth Circuit has issued a decision stating a law firm’s client may pursue a legal malpractice case against her former attorneys despite that she was unable to pay her share of mandatory arbitration expenses. In Tillman v. Rheingold, Valet, Rheingold, Shkolnik & McCartney, No. 13-56624 (9th Cir., June 15, 2016), a woman, Tillman, signed a retainer agreement with a law firm, Rheingold, Valet, Rheingold, Shkolnik & McCartney (“Rheingold”),...
August 3, 2016
The United States Court of Appeals for the Ninth Circuit has issued a decision stating a law firm’s client may pursue a legal malpractice case against her former attorneys despite that she was unable to pay her share of mandatory arbitration expenses. In Tillman v. Rheingold, Valet, Rheingold, Shkolnik & McCartney, No. 13-56624 (9th Cir., June 15, 2016), a woman, Tillman, signed a retainer agreement with a law firm, Rheingold, Valet, Rheingold, Shkolnik & McCartney (“Rheingold”),...
