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Arbitration
Fifth Circuit Finds Federal Jurisdiction Over $10,000 Arbitration Award
May 26, 2016
The Fifth Circuit recently addressed a hard question: what should the court consider when determining the amount in controversy for purposes of federal jurisdiction over an arbitration award? The court decided to rely on the amount originally sought by the claimant in the demand for arbitration. Pershing, LLC v. Kiebach, __ F.3d __, 2016 WL 1375874 (5th Cir. April 6, 2016). In Pershing, the claimants demanded $80 million in damages from their broker. The arbitration panel rejected their claims,...
May 26, 2016
The Fifth Circuit recently addressed a hard question: what should the court consider when determining the amount in controversy for purposes of federal jurisdiction over an arbitration award? The court decided to rely on the amount originally sought by the claimant in the demand for arbitration. Pershing, LLC v. Kiebach, __ F.3d __, 2016 WL 1375874 (5th Cir. April 6, 2016). In Pershing, the claimants demanded $80 million in damages from their broker. The arbitration panel rejected their claims,...
Silicon Valley Arbitration Clauses
May 25, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form...
May 25, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form...
The Arbitration Bootstrap
May 25, 2016
Christopher R. Leslie, Chancellor’s Professor of Law at the University of California, Irvine School of Law has published “The Arbitration Bootstrap,” Texas Law Review, Vol. 94, No. 2, 2015; UC Irvine School of Law Research Paper No. 2016-19. In his paper, Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts. Here is the abstract: Arbitration clauses in contracts require consumers to waive...
May 25, 2016
Christopher R. Leslie, Chancellor’s Professor of Law at the University of California, Irvine School of Law has published “The Arbitration Bootstrap,” Texas Law Review, Vol. 94, No. 2, 2015; UC Irvine School of Law Research Paper No. 2016-19. In his paper, Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts. Here is the abstract: Arbitration clauses in contracts require consumers to waive...
Sign O’ The Times: SCOTUS Denies Cert In Franchise Arbitration Dispute
May 25, 2016
On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert in a case involving the intersection between arbitration and franchise regulation. The petition was filed in November of 2015, and after the respondent initially declined to respond, the Court specifically requested a response, and conferenced the case twice, before denying the petition. This could be an indication that, without Scalia, the Court is less interested in arbitration issues, or at least...
May 25, 2016
On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert in a case involving the intersection between arbitration and franchise regulation. The petition was filed in November of 2015, and after the respondent initially declined to respond, the Court specifically requested a response, and conferenced the case twice, before denying the petition. This could be an indication that, without Scalia, the Court is less interested in arbitration issues, or at least...
SCOTX: Arbitration Conducted Under the TAA May Not Be Vacated on Common-Law Grounds
May 24, 2016
On Friday, the Supreme Court of Texas ruled that an arbitral award may not be vacated under the Texas Arbitration Act (“TAA”) based on common-law grounds. In Leonard K. Hoskins v. Colonel Clifford Hoskins and Hoskins, Inc., No. 15-0046 (May 20, 2016), two siblings were ordered to engage in arbitration over the allegedly improper transfer of certain mineral rights from their father’s estate. Following arbitration, one of the siblings asked a trial court to vacate the arbitrator’s decision...
May 24, 2016
On Friday, the Supreme Court of Texas ruled that an arbitral award may not be vacated under the Texas Arbitration Act (“TAA”) based on common-law grounds. In Leonard K. Hoskins v. Colonel Clifford Hoskins and Hoskins, Inc., No. 15-0046 (May 20, 2016), two siblings were ordered to engage in arbitration over the allegedly improper transfer of certain mineral rights from their father’s estate. Following arbitration, one of the siblings asked a trial court to vacate the arbitrator’s decision...
Fifth Circuit: Authority to Execute Arbitration Agreement
May 24, 2016
The Fifth Circuit Court of Appeals consolidated two cases that asked similar questions: what level of authority does one need under Mississippi law to execute an arbitration agreement. Both cases involved arbitration agreements relating to nursing homes. The cases are: Gross v. GGNSC Southaven, LLC and Cotton v. GGNSC Batesville, LLC. In both instances, the trial court denied the nursing homes' motions to compel, reasoning that Mississippi law required an executed power of attorney, or some other...
May 24, 2016
The Fifth Circuit Court of Appeals consolidated two cases that asked similar questions: what level of authority does one need under Mississippi law to execute an arbitration agreement. Both cases involved arbitration agreements relating to nursing homes. The cases are: Gross v. GGNSC Southaven, LLC and Cotton v. GGNSC Batesville, LLC. In both instances, the trial court denied the nursing homes' motions to compel, reasoning that Mississippi law required an executed power of attorney, or some other...
Curbing the Runaway Arbitrator in Commercial Arbitration: Making Exceeding the Powers Count
May 23, 2016
Sarah Rudolph Cole, John W. Bricker Professor of Law and Director of the Program on Dispute Resolution at Moritz College of Law, has published “Curbing the Runaway Arbitrator in Commercial Arbitration: Making Exceeding the Powers Count,” Alabama Law Review, Forthcoming; Ohio State Public Law Working Paper No. 344. In her publication, Professor Cole proposes utilizing a standardized “exceeding the powers” standard of review for challenging arbitral awards in state and federal court. Here...
May 23, 2016
Sarah Rudolph Cole, John W. Bricker Professor of Law and Director of the Program on Dispute Resolution at Moritz College of Law, has published “Curbing the Runaway Arbitrator in Commercial Arbitration: Making Exceeding the Powers Count,” Alabama Law Review, Forthcoming; Ohio State Public Law Working Paper No. 344. In her publication, Professor Cole proposes utilizing a standardized “exceeding the powers” standard of review for challenging arbitral awards in state and federal court. Here...
Texas: Court Abused Discretion in Ordering Mediation when Parties Agreed to Arbitrate
May 23, 2016
In In Re Frank A. Smith Sales, Inc. d/b/a Frank Smith Toyota, the Thirteenth District Court of Appeals held that mandamus...
May 23, 2016
In In Re Frank A. Smith Sales, Inc. d/b/a Frank Smith Toyota, the Thirteenth District Court of Appeals held that mandamus...
Unvacating Arbitration Awards: Quarterbacks and Car Accidents
May 19, 2016
The Second Circuit reminded us yesterday that judicial review of arbitration awards is “among the most deferential in the law.” And when district courts are not sufficiently deferential, their decisions are likely to be overturned. That happened recently in Tom Brady’s “deflate-gate” arbitration, and in an arbitration over how much a pedestrian was owed after a car accident. Perhaps not surprisingly, the appellate court’s description of the Brady arbitration sounds like...
May 19, 2016
The Second Circuit reminded us yesterday that judicial review of arbitration awards is “among the most deferential in the law.” And when district courts are not sufficiently deferential, their decisions are likely to be overturned. That happened recently in Tom Brady’s “deflate-gate” arbitration, and in an arbitration over how much a pedestrian was owed after a car accident. Perhaps not surprisingly, the appellate court’s description of the Brady arbitration sounds like...
Texas: Arbitration Agreement was not Unconscionable
May 19, 2016
In Bonded Builders Home Warranty Association of Texas, Inc. v. Smith, the Fifth District Court of Appeals (Dallas) reversed the trial court's denial of a motion to compel arbitration. In objecting to the motion to arbitrate, Smith asserted that the arbitration clause inserted in a warranty was unconscionable because "(1) it requires Plaintiffs to ask an arbitrator to award damages against a company that is sending business to the arbitration company; (2) the rules that govern the arbitration are unknown...
May 19, 2016
In Bonded Builders Home Warranty Association of Texas, Inc. v. Smith, the Fifth District Court of Appeals (Dallas) reversed the trial court's denial of a motion to compel arbitration. In objecting to the motion to arbitrate, Smith asserted that the arbitration clause inserted in a warranty was unconscionable because "(1) it requires Plaintiffs to ask an arbitrator to award damages against a company that is sending business to the arbitration company; (2) the rules that govern the arbitration are unknown...
