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Arbitration
Arbitration Award Affirmed Over Procedural Objections
August 3, 2016
The unsuccessful parties in the arbitration of a real estate dispute challenged confirmation of the award. The Fifth Circuit rejected the argument that the phrase “any other misbehavior by which the rights of any party have been prejudiced in 9 USC § 10(a)(3) could be read as applying to the district court. It also rejected a discovery-related argument when “[t]he arbitrator decided not to issue subpoenas when the Investors failed to answer his questions about what evidence they needed from...
August 3, 2016
The unsuccessful parties in the arbitration of a real estate dispute challenged confirmation of the award. The Fifth Circuit rejected the argument that the phrase “any other misbehavior by which the rights of any party have been prejudiced in 9 USC § 10(a)(3) could be read as applying to the district court. It also rejected a discovery-related argument when “[t]he arbitrator decided not to issue subpoenas when the Investors failed to answer his questions about what evidence they needed from...
Justice Scalia’s Jiggery-Pokery in Federal Arbitration Law
August 2, 2016
David S. Schwartz, Foley & Lardner Bascom Professor of Law at the University of Wisconsin Law School, has published “Justice Scalia’s Jiggery-Pokery in Federal Arbitration Law,” Minnesota Law Review, Vol. 101, Headnotes 75 (2016); Univ. of Wisconsin Legal Studies Research Paper No. 1387. In his journal article,Professor Schwartz examines the late United States Supreme Court Justice Antonin Scalia’s impact on federal arbitration law. Here is the abstract: “Jiggery-pokery,” a phrase...
August 2, 2016
David S. Schwartz, Foley & Lardner Bascom Professor of Law at the University of Wisconsin Law School, has published “Justice Scalia’s Jiggery-Pokery in Federal Arbitration Law,” Minnesota Law Review, Vol. 101, Headnotes 75 (2016); Univ. of Wisconsin Legal Studies Research Paper No. 1387. In his journal article,Professor Schwartz examines the late United States Supreme Court Justice Antonin Scalia’s impact on federal arbitration law. Here is the abstract: “Jiggery-pokery,” a phrase...
Arbitration: Delegation Means Delegation
August 2, 2016
In Kubala v. Supreme Production Services, the parties disputed whether an arbitration agreement reached an employment claim that arose before entry into the agreement. The district court found that it did not and denied the motion to compel arbitration. The Fifth Circuit reversed, finding this delegation clause “strikingly similar” to the one at issue in Rent-A-Center v. Jackson, 561 U.S. 63 (2010): “The arbitrator shall have the sole authority to rule on his/her own jurisdiction, including...
August 2, 2016
In Kubala v. Supreme Production Services, the parties disputed whether an arbitration agreement reached an employment claim that arose before entry into the agreement. The district court found that it did not and denied the motion to compel arbitration. The Fifth Circuit reversed, finding this delegation clause “strikingly similar” to the one at issue in Rent-A-Center v. Jackson, 561 U.S. 63 (2010): “The arbitrator shall have the sole authority to rule on his/her own jurisdiction, including...
Dallas COA Compels Arbitration in Injured Nurse’s Lawsuit Against Former Employer
August 1, 2016
Texas’ Fifth District Court of Appeals in Dallas has ordered an injured nurse’s lawsuit filed against his former employer...
August 1, 2016
Texas’ Fifth District Court of Appeals in Dallas has ordered an injured nurse’s lawsuit filed against his former employer...
O’Brien on Whether Class-Action Waivers Violate the NLRA
July 31, 2016
Christine O'Brien (Boston College - Management) has just posted on SSRN her article (forthcoming 19 U. Pa. J. Bus. L. ___)...
July 31, 2016
Christine O'Brien (Boston College - Management) has just posted on SSRN her article (forthcoming 19 U. Pa. J. Bus. L. ___)...
Couple Awarded $331,000 in Compensatory Damages Following FINRA Arbitration
July 29, 2016
A Financial Industry Regulatory Authority (“FINRA”) arbitration panel has reportedly ordered a wealth management adviser to pay a couple $331,000 in compensatory damages for making unsuitable, high-risk investments. In Arbitration Case No. 15-00443, the couple sought nearly $1.1 million for “breach of contract and breach of implied contract, violation of Rule 10(13)-5 of the Securities Exchange Act of 1934, negligence, common law fraud, breach of the standard and customs of the securities...
July 29, 2016
A Financial Industry Regulatory Authority (“FINRA”) arbitration panel has reportedly ordered a wealth management adviser to pay a couple $331,000 in compensatory damages for making unsuitable, high-risk investments. In Arbitration Case No. 15-00443, the couple sought nearly $1.1 million for “breach of contract and breach of implied contract, violation of Rule 10(13)-5 of the Securities Exchange Act of 1934, negligence, common law fraud, breach of the standard and customs of the securities...
Are Rules Allowing Arbitral Sanctions a Mirage?
July 28, 2016
Paul Bennett Marrow, Adjunct Professor at New York Law School, Member of the Commercial Panel for the American Arbitration Association, ADR Systems, Public Member of the FINRA Panel of Neutrals, and Fellow at the Chartered Institute of Arbitrators in London, England, has published “Are Rules Allowing Arbitral Sanctions a Mirage?,” 88 Journal New York State Bar Association 28, June 2016. In his publication, Mr. Morrow discusses whether an arbitrator may use permissive procedures to impose sanctions...
July 28, 2016
Paul Bennett Marrow, Adjunct Professor at New York Law School, Member of the Commercial Panel for the American Arbitration Association, ADR Systems, Public Member of the FINRA Panel of Neutrals, and Fellow at the Chartered Institute of Arbitrators in London, England, has published “Are Rules Allowing Arbitral Sanctions a Mirage?,” 88 Journal New York State Bar Association 28, June 2016. In his publication, Mr. Morrow discusses whether an arbitrator may use permissive procedures to impose sanctions...
9th Circuit Narrows Grounds For Vacating Labor Arbitration Awardsa
July 27, 2016
Finding that some of its previous pronouncements were leading district court judges astray, the Ninth Circuit clarified its precedent regarding the scope of review of labor arbitration awards. “We conclude that it is time for us to retire the use of ‘plausibility’ as a term to describe the courts’ role in reviewing labor arbitration awards.” Southwest Regional Council of Carpenters v. Drywall Dynamics, Inc., 2016 WL 2909241 (9th Cir. May 19, 2016). In Drywall Dynamics, the district court...
July 27, 2016
Finding that some of its previous pronouncements were leading district court judges astray, the Ninth Circuit clarified its precedent regarding the scope of review of labor arbitration awards. “We conclude that it is time for us to retire the use of ‘plausibility’ as a term to describe the courts’ role in reviewing labor arbitration awards.” Southwest Regional Council of Carpenters v. Drywall Dynamics, Inc., 2016 WL 2909241 (9th Cir. May 19, 2016). In Drywall Dynamics, the district court...
Courts Approve Terms of Service-Based Arbitration Clauses for Uber and Groupon
July 21, 2016
Online terms, and in particular arbitration clauses, have been subject to attack by plaintiffs’ lawyers. News reports have also raised the specter of over-the-top online terms that no one but the lawyers read. However, with the exception of some aberrational decisions, for the most part courts have enforced arbitration clauses, including class action waivers, in properly formed clickthrough agreements. Cullinane v. Uber Techs.: This is a lawsuit over hidden fees or overcharges for rides to and from...
July 21, 2016
Online terms, and in particular arbitration clauses, have been subject to attack by plaintiffs’ lawyers. News reports have also raised the specter of over-the-top online terms that no one but the lawyers read. However, with the exception of some aberrational decisions, for the most part courts have enforced arbitration clauses, including class action waivers, in properly formed clickthrough agreements. Cullinane v. Uber Techs.: This is a lawsuit over hidden fees or overcharges for rides to and from...
“Modified Clickwrap” Upheld In Court–Moule v. UPS
July 21, 2016
Let’s review the state of play: * courts say online contracts should be categorizable as “clickwraps” or “browsewraps” * courts usually enforce clickwraps but not browsewraps * despite the categories, courts don’t view clickwraps and browsewraps as abutting circles on a Venn diagram. Instead, the circles apparently are partially overlapping. This is resulting in analytical confusion * because courts don’t understand the definitions of “clickwrap” or “browsewrap,” the courts...
July 21, 2016
Let’s review the state of play: * courts say online contracts should be categorizable as “clickwraps” or “browsewraps” * courts usually enforce clickwraps but not browsewraps * despite the categories, courts don’t view clickwraps and browsewraps as abutting circles on a Venn diagram. Instead, the circles apparently are partially overlapping. This is resulting in analytical confusion * because courts don’t understand the definitions of “clickwrap” or “browsewrap,” the courts...
