Arbitration
Confidentiality in Consumer and Employment Arbitration
March 17, 2016
Christopher R. Drahozal, Associate Dean for Research & Faculty Development and John M. Rounds Professor of Law at the University of Kansas School of Law, has published “Confidentiality in Consumer and Employment Arbitration,” 7 Yearbook on Arbitration & Mediation, 2015. In his article, Professor Drahozaldiscusses what he believes is a generalized misperception regarding the confidentiality of arbitral procedures. Here is the abstract: This article examines an apparent misperception...
March 17, 2016
Christopher R. Drahozal, Associate Dean for Research & Faculty Development and John M. Rounds Professor of Law at the University of Kansas School of Law, has published “Confidentiality in Consumer and Employment Arbitration,” 7 Yearbook on Arbitration & Mediation, 2015. In his article, Professor Drahozaldiscusses what he believes is a generalized misperception regarding the confidentiality of arbitral procedures. Here is the abstract: This article examines an apparent misperception...
Arizona Court Overturns Nursing Home Arbitration Agreement
March 16, 2016
One of the biggest changes when it comes to nursing homes in recent years has not been related to the care received but the agreement that gets someone into the facility. Arbitration agreements are now boiler plate language in nursing home contracts and severely constrict the ability of aggrieved residents or family from pursuing relief in court where the potential remedies are often more robust. But a recent Arizona case showed that the agreements are not ironclad. A man entered his mother into...
March 16, 2016
One of the biggest changes when it comes to nursing homes in recent years has not been related to the care received but the agreement that gets someone into the facility. Arbitration agreements are now boiler plate language in nursing home contracts and severely constrict the ability of aggrieved residents or family from pursuing relief in court where the potential remedies are often more robust. But a recent Arizona case showed that the agreements are not ironclad. A man entered his mother into...
Three Appellate Courts Remand for Trial on Existence of Agreement to Arbitrate
March 16, 2016
Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama. The two federal...
March 16, 2016
Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama. The two federal...
Fourth Circuit Holds Arbitration Agreement May Not Waive All Federal Statutory Rights
March 15, 2016
This week, the Fourth Circuit found an arbitration agreement invalid because it waived all federal and state laws. Although two other federal circuit courts had already found the same company’s arbitration agreement unenforceable because it called for an impossible arbitration process, the Fourth Circuit found it invalid for a new reason. The issue in Hayes v. Delbert Services Corp., __ F.3d___, 2016 WL 386016 (4th Cir. Feb. 2, 2016), was whether a putative class of plaintiffs could assert...
March 15, 2016
This week, the Fourth Circuit found an arbitration agreement invalid because it waived all federal and state laws. Although two other federal circuit courts had already found the same company’s arbitration agreement unenforceable because it called for an impossible arbitration process, the Fourth Circuit found it invalid for a new reason. The issue in Hayes v. Delbert Services Corp., __ F.3d___, 2016 WL 386016 (4th Cir. Feb. 2, 2016), was whether a putative class of plaintiffs could assert...
New Case On Nursing Home Arbitration Agreements In California
March 14, 2016
In 2012, Marjorie Fitzpatrick entered an assisted living center due to her advancing dementia and was sign in by her daughter Valerie acting as her mothers representative. However, in 2013, Marjorie suffered a fall outside the facility while unsupervised and was left on the ground for over half an hour and suffered numerous injuries which contributed to her death. Valerie, acting as a representative of Marjorie's estate, filed suit for wrongful death but the facility argued that Valerie and the estate...
March 14, 2016
In 2012, Marjorie Fitzpatrick entered an assisted living center due to her advancing dementia and was sign in by her daughter Valerie acting as her mothers representative. However, in 2013, Marjorie suffered a fall outside the facility while unsupervised and was left on the ground for over half an hour and suffered numerous injuries which contributed to her death. Valerie, acting as a representative of Marjorie's estate, filed suit for wrongful death but the facility argued that Valerie and the estate...
Article on Predispute Arbitration Agreements
March 10, 2016
Mary F. Radford (Professor of Law, Georgia State University School of Law) recently published an article entitled, Predispute Arbitration Agreements Between Trustees and Financial Service: Are Beneficiaries Bound?, 40 ACTEC J. 273 (2014). Provided below is an excerpt from the article: Part I of this article contains a brief description of arbitration, a discussion of the use of arbitration in securities lawsuits (that is, suits against brokerage firms and investment advisers), and an examination...
March 10, 2016
Mary F. Radford (Professor of Law, Georgia State University School of Law) recently published an article entitled, Predispute Arbitration Agreements Between Trustees and Financial Service: Are Beneficiaries Bound?, 40 ACTEC J. 273 (2014). Provided below is an excerpt from the article: Part I of this article contains a brief description of arbitration, a discussion of the use of arbitration in securities lawsuits (that is, suits against brokerage firms and investment advisers), and an examination...
Binding Arbitration Clauses, Educational Training Materials Edition
March 8, 2016
No, it's not legal-education-related, but rather real-estate-education-related. Which, according to the plaintiff, didn't actually teach her what it promised to teach her. So she sued. The defendant, however, noted that she'd signed a contract with an arbitration clause and so they shouldn't be in court. And the court agreed, in Kane v. Yancy, CIVIL ACTION NO. H-15-1861 (behind paywall), a recent case out of the Southern District of Texas. Arbitration clauses are, of course, generally looked...
March 8, 2016
No, it's not legal-education-related, but rather real-estate-education-related. Which, according to the plaintiff, didn't actually teach her what it promised to teach her. So she sued. The defendant, however, noted that she'd signed a contract with an arbitration clause and so they shouldn't be in court. And the court agreed, in Kane v. Yancy, CIVIL ACTION NO. H-15-1861 (behind paywall), a recent case out of the Southern District of Texas. Arbitration clauses are, of course, generally looked...
Arbitration Provisions and Unconscionability
March 7, 2016
This case is a lesson in: Do what the judge tells you to do. Ruiz v. Millennium Square Residential Association, Civil Action No. 15-1014 (JDB), out of the U.S. District Court for the District of Columbia, is a fairly staid dispute over whether a condominium owner complied with the condominium association bylaws when he made changes to his unit. The bylaws contained an arbitration provision for disputes like this, which the plaintiff argued was unconscionable. The court didn't seem to think...
March 7, 2016
This case is a lesson in: Do what the judge tells you to do. Ruiz v. Millennium Square Residential Association, Civil Action No. 15-1014 (JDB), out of the U.S. District Court for the District of Columbia, is a fairly staid dispute over whether a condominium owner complied with the condominium association bylaws when he made changes to his unit. The bylaws contained an arbitration provision for disputes like this, which the plaintiff argued was unconscionable. The court didn't seem to think...
Is Mandatory Arbitration Bad for Business?
March 4, 2016
A recent article in The Economist, The big fight, notes that European companies are far ahead of American companies in developing dispute esolution systems for consumer disputes, especially in online ADR. I think a good case can be made that SCOTUS's pro-arbitration line of cases -- especially those that all but extinguish consumer class actions -- have removed the incentive for American companies to invest in developing effective dispute-resolution programs. As a result, American companies risk...
March 4, 2016
A recent article in The Economist, The big fight, notes that European companies are far ahead of American companies in developing dispute esolution systems for consumer disputes, especially in online ADR. I think a good case can be made that SCOTUS's pro-arbitration line of cases -- especially those that all but extinguish consumer class actions -- have removed the incentive for American companies to invest in developing effective dispute-resolution programs. As a result, American companies risk...
Political Risk and Investment Arbitration: An Empirical Study
February 25, 2016
Investment arbitrations should not happen too often, because they are costly processes for both parties. Yet they regularly happen. Why? We investigate the hypothesis that investment arbitrations are used as a means of last resort, after dissuasion has failed, and that dissuasion is most likely to fail in situations were significant political risk materializes. Investment arbitration should thus tend to target countries in which certain types of political risk has materialized. In order to test this...
February 25, 2016
Investment arbitrations should not happen too often, because they are costly processes for both parties. Yet they regularly happen. Why? We investigate the hypothesis that investment arbitrations are used as a means of last resort, after dissuasion has failed, and that dissuasion is most likely to fail in situations were significant political risk materializes. Investment arbitration should thus tend to target countries in which certain types of political risk has materialized. In order to test this...
