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Arbitration
Financial Incentive for Arbitrators to Make Timely Decisions
April 14, 2016
A party’s selection of arbitrator is a critical, strategic decision in international arbitration. Presumably, this new policy...
April 14, 2016
A party’s selection of arbitrator is a critical, strategic decision in international arbitration. Presumably, this new policy...
NLRB, Fifth Circuit Continue Disagreement Regarding Class Arbitration Waivers
April 13, 2016
In early February, the National Labor Relations Board (“NLRB”) once again ruled that a class action waiver included in a mandatory arbitration agreement workers were required to sign as a condition of employment violated federal law. In Waffle House, Inc. and Carrie Harris, No. 10–CA–121178, a divided three-member panel found that the arbitral provision at issue violated the National Labor Relations Act. According to the Board, By maintaining a mandatory arbitration agreement that requires...
April 13, 2016
In early February, the National Labor Relations Board (“NLRB”) once again ruled that a class action waiver included in a mandatory arbitration agreement workers were required to sign as a condition of employment violated federal law. In Waffle House, Inc. and Carrie Harris, No. 10–CA–121178, a divided three-member panel found that the arbitral provision at issue violated the National Labor Relations Act. According to the Board, By maintaining a mandatory arbitration agreement that requires...
Arbitration Provisions, Professional Organizations Edition
April 11, 2016
People keep challenging arbitration provisions, and they keep losing. In this instance, a case out of Washington called Marcus & Millichap Real Estate Investment Services of Seattle, Inc. v. Yates, Wood & MacDonald, Inc., No. 73199-8-I. This time, the parties were both voluntary members of the Commercial Broker's Association (the "CBA"), the bylaws of which contained a clause that CBA members agreed to arbitrate disputes with each other according to the CBA's arbitration procedure. Neither...
April 11, 2016
People keep challenging arbitration provisions, and they keep losing. In this instance, a case out of Washington called Marcus & Millichap Real Estate Investment Services of Seattle, Inc. v. Yates, Wood & MacDonald, Inc., No. 73199-8-I. This time, the parties were both voluntary members of the Commercial Broker's Association (the "CBA"), the bylaws of which contained a clause that CBA members agreed to arbitrate disputes with each other according to the CBA's arbitration procedure. Neither...
Montana Finds Arbitration Agreement Unconscionable For Lack of Mutuality
April 7, 2016
March comes in like a lion, right? Well, that’s not true with respect to the weather here in Minneapolis. But it may be true with respect to arbitration decisions from around the country. This post focuses on two recent decisions from state high courts that refuse to compel arbitration. In Global Client Solutions, LLC v. Ossello, 2016 WL 825140 (Mont. Mar. 2, 2016), a majority of Montana’s Supreme Court refused to enforce the arbitration clause between a consumer and a financial institution...
April 7, 2016
March comes in like a lion, right? Well, that’s not true with respect to the weather here in Minneapolis. But it may be true with respect to arbitration decisions from around the country. This post focuses on two recent decisions from state high courts that refuse to compel arbitration. In Global Client Solutions, LLC v. Ossello, 2016 WL 825140 (Mont. Mar. 2, 2016), a majority of Montana’s Supreme Court refused to enforce the arbitration clause between a consumer and a financial institution...
Witnesses in Arbitration – Federal Arbitration Act
April 6, 2016
Testimony and documents may be obtained in arbitration in accordance with the parties’ agreement, the applicable institutional arbitration rules and provisions of law (federal and state arbitration acts, as applicable). My prior article addressed the California Arbitration Act, but there are significant differences under the Federal Arbitration Act (FAA). The FAA provides limited authority to subpoena witnesses or a summons to a hearing under Section 7: The arbitrators selected either as prescribed...
April 6, 2016
Testimony and documents may be obtained in arbitration in accordance with the parties’ agreement, the applicable institutional arbitration rules and provisions of law (federal and state arbitration acts, as applicable). My prior article addressed the California Arbitration Act, but there are significant differences under the Federal Arbitration Act (FAA). The FAA provides limited authority to subpoena witnesses or a summons to a hearing under Section 7: The arbitrators selected either as prescribed...
BG Group and ‘Conditions’ to Arbitral Jurisdiction
April 5, 2016
Professor Alan Scott Rau, Mark G. and Judy G. Yudof Chair in Law at the University of Texas School of Law, and Professor Andrea K. Bjorklund, L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University, have published “BG Group and ‘Conditions’ to Arbitral Jurisdiction,”Pepperdine Law Review, Forthcoming; KBH Energy Center Research Paper No. 2016-4. In the scholarly work, Professors Rau and Bjorklund each provide their own perspective on the United...
April 5, 2016
Professor Alan Scott Rau, Mark G. and Judy G. Yudof Chair in Law at the University of Texas School of Law, and Professor Andrea K. Bjorklund, L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University, have published “BG Group and ‘Conditions’ to Arbitral Jurisdiction,”Pepperdine Law Review, Forthcoming; KBH Energy Center Research Paper No. 2016-4. In the scholarly work, Professors Rau and Bjorklund each provide their own perspective on the United...
SCOTUS Summarily Reverses Second Arbitration Case This Term
April 4, 2016
Showing it will soldier on without Justice Scalia, the Supreme Court granted cert, vacated, and remanded an arbitration decision from West Virginia yesterday. Because this is the exact same treatment the Court gave a case from Hawaii’s highest court in January (and the same treatment I predicted, ahem), it suggests SCOTUS is trying to go on with business as usual. So, what was the West Virginia case? It is the Schumacher Homes case I wrote about last July, in which that state’s highest court...
April 4, 2016
Showing it will soldier on without Justice Scalia, the Supreme Court granted cert, vacated, and remanded an arbitration decision from West Virginia yesterday. Because this is the exact same treatment the Court gave a case from Hawaii’s highest court in January (and the same treatment I predicted, ahem), it suggests SCOTUS is trying to go on with business as usual. So, what was the West Virginia case? It is the Schumacher Homes case I wrote about last July, in which that state’s highest court...
Fees & FINRA
March 31, 2016
Following are two interesting and recent federal court rulings related to arbitration. Award of Attorney’s Fees Associated with Motion to Confirm Reversed on Appeal Zurich American Insurance (as subrogee of Vinmar International) v. Team Tankers Vinmar International chartered a ship from Team Tankers (TT). When the chemical shipped from Houston arrived in South Korea, it showed signs of yellowing, reducing its value. * * * Non-FINRA Arbitrators Allowed if Specified in Pre-Dispute Employment...
March 31, 2016
Following are two interesting and recent federal court rulings related to arbitration. Award of Attorney’s Fees Associated with Motion to Confirm Reversed on Appeal Zurich American Insurance (as subrogee of Vinmar International) v. Team Tankers Vinmar International chartered a ship from Team Tankers (TT). When the chemical shipped from Houston arrived in South Korea, it showed signs of yellowing, reducing its value. * * * Non-FINRA Arbitrators Allowed if Specified in Pre-Dispute Employment...
No Brotherly Bias in Arbitration Award, Ninth Circuit Rules
March 29, 2016
A federal appeals court on Monday reinstated a $5.3 million employment arbitration award against medical-device maker Masimo Corp. in a case where the company made an issue of the arbitrator's family ties to Cooley chairman Stephen Neal. Masimo's appellate team at Knobbe, Martens, Olson & Bear had claimed JAMS neutral Richard Neal, a former justice on the Second District Court of Appeal, was biased because his brother had lost two big-ticket cases against the company. The argument persuaded...
March 29, 2016
A federal appeals court on Monday reinstated a $5.3 million employment arbitration award against medical-device maker Masimo Corp. in a case where the company made an issue of the arbitrator's family ties to Cooley chairman Stephen Neal. Masimo's appellate team at Knobbe, Martens, Olson & Bear had claimed JAMS neutral Richard Neal, a former justice on the Second District Court of Appeal, was biased because his brother had lost two big-ticket cases against the company. The argument persuaded...
Arbitration Provisions, Unconscionability, and Employment Contracts
March 28, 2016
We've looked at arbitration provisions and unconscionability before. In this recent case out of California, Yeotis v. Warner Pacific Insurance Services Inc., No. B245770, the agreement in question was found to be unconscionable in places, but that didn't doom the arbitration provision contained within it. There was an element of procedural unconscionability to the contract. The court concluded that the contract was an adhesion contract, because the plaintiff was required to sign it in order to keep...
March 28, 2016
We've looked at arbitration provisions and unconscionability before. In this recent case out of California, Yeotis v. Warner Pacific Insurance Services Inc., No. B245770, the agreement in question was found to be unconscionable in places, but that didn't doom the arbitration provision contained within it. There was an element of procedural unconscionability to the contract. The court concluded that the contract was an adhesion contract, because the plaintiff was required to sign it in order to keep...
