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Arbitration
Transparency in Arbitrator Selection
January 25, 2016
Professor Catherine A. Rogers, Paul and Marjorie Price Faculty Scholar and Professor of Ethics, Regulation & The Rule of Law at Penn State Law, and Director of the Institute for Ethics Regulation & The Rule of Law, Queen Mary, University of London, has written “Transparency in Arbitrator Selection,” Austrian Yearbook on International Arbitration, Forthcoming. In her scholarly essay, Professor Rogers discusses recent developments with regard to transparency in the context of arbitrator...
January 25, 2016
Professor Catherine A. Rogers, Paul and Marjorie Price Faculty Scholar and Professor of Ethics, Regulation & The Rule of Law at Penn State Law, and Director of the Institute for Ethics Regulation & The Rule of Law, Queen Mary, University of London, has written “Transparency in Arbitrator Selection,” Austrian Yearbook on International Arbitration, Forthcoming. In her scholarly essay, Professor Rogers discusses recent developments with regard to transparency in the context of arbitrator...
SCOTUS: Class Arbitration Waivers Valid
January 21, 2016
On December 14, 2015, the United States Supreme Court issued its opinion in DirectTV, Inc. v. Imburgia. The US Supreme Court...
January 21, 2016
On December 14, 2015, the United States Supreme Court issued its opinion in DirectTV, Inc. v. Imburgia. The US Supreme Court...
2015: Arbitration Inches Toward Center Stage
January 20, 2016
Arbitration case law did not break any new ground in 2015. Instead, a larger sector of the public became aware of the ground already broken in 2011 and 2013, as well as how common arbitration is in professional sports. Let’s review some of the attention-grabbing arbitration headlines of 2015. There was: * * * What would casual observers learn from this year of arbitration headlines? Two lessons: first, famous athletes have an uncanny knack for vacating arbitration awards; and second,...
January 20, 2016
Arbitration case law did not break any new ground in 2015. Instead, a larger sector of the public became aware of the ground already broken in 2011 and 2013, as well as how common arbitration is in professional sports. Let’s review some of the attention-grabbing arbitration headlines of 2015. There was: * * * What would casual observers learn from this year of arbitration headlines? Two lessons: first, famous athletes have an uncanny knack for vacating arbitration awards; and second,...
Alabama Acknowledges AAA Rules Authorize Arbitrator To Determine Whether Non-Signatory Is Bound
January 19, 2016
The Alabama Supreme Court has followed the Eighth Circuit’s lead, concluding that when the parties agree to arbitrate pursuant to the AAA Rules, they have clearly and unmistakably authorized the arbitrator to determine who is bound by that arbitration agreement. Federal Ins. Co. v. Reedstrom, __ So. 3d __, 2015 WL 9264282 (Ala. Dec. 18, 2015). The dispute in Reedstrom centered on whether an executive liability insurance policy covered a judgment against a former executive for misconduct. The executive...
January 19, 2016
The Alabama Supreme Court has followed the Eighth Circuit’s lead, concluding that when the parties agree to arbitrate pursuant to the AAA Rules, they have clearly and unmistakably authorized the arbitrator to determine who is bound by that arbitration agreement. Federal Ins. Co. v. Reedstrom, __ So. 3d __, 2015 WL 9264282 (Ala. Dec. 18, 2015). The dispute in Reedstrom centered on whether an executive liability insurance policy covered a judgment against a former executive for misconduct. The executive...
3 Year-End Arbitration Lessons From Appellate Courts
January 19, 2016
Before I can sum up 2015 in arbitration (next post!), I need to report on some new cases coming out of the federal and state appellate courts in recent weeks. Two are just good reminders of basic arbitration law, but the third addresses an interesting question of double recovery. Our first “reminder” case comes from New York’s highest court. In Cusimano v. Schnurr, 2015 WL 8787554 (N.Y. Dec. 16, 2015), that court held that the Federal Arbitration Act applies, even to intrafamily transactions...
January 19, 2016
Before I can sum up 2015 in arbitration (next post!), I need to report on some new cases coming out of the federal and state appellate courts in recent weeks. Two are just good reminders of basic arbitration law, but the third addresses an interesting question of double recovery. Our first “reminder” case comes from New York’s highest court. In Cusimano v. Schnurr, 2015 WL 8787554 (N.Y. Dec. 16, 2015), that court held that the Federal Arbitration Act applies, even to intrafamily transactions...
Inaccurate Translation Invalidates Arbitration Agreement
January 19, 2016
The Jackson|Lewis California Workplace Law Blog reports on a decision from the California Court of Appeal that held an automobile dealership that translated a sales contract into Spanish, but did not include the arbitration agreement in the translation, could not enforce the agreement. According to the decision, despite signing the English version of the contract (that did contain an arbitration provision), under California law, the arbitration agreement was not enforceable because (1) Spanish was the primary...
January 19, 2016
The Jackson|Lewis California Workplace Law Blog reports on a decision from the California Court of Appeal that held an automobile dealership that translated a sales contract into Spanish, but did not include the arbitration agreement in the translation, could not enforce the agreement. According to the decision, despite signing the English version of the contract (that did contain an arbitration provision), under California law, the arbitration agreement was not enforceable because (1) Spanish was the primary...
Szalai: DirecTV v. Imburgia Turns Arbitration Law On Its Head
January 18, 2016
Arbitration guru Imre Szalai (Loyola) provides us with his thoughts on the Supreme Court’s recent DirecTV case. Naturally Imre kicked off the listserv thread Jill mentioned yesterday. And here’s a link to Imre’s arbitration blog for further info on the case. Earlier today, the Supreme Court issued its decision in DirecTV v Imburgia. Three issues struck me after reading the decision: 1) a majority of the Justices re-affirmed (and in my mind, expanded) the broad preemptive powers of the FAA and lost...
January 18, 2016
Arbitration guru Imre Szalai (Loyola) provides us with his thoughts on the Supreme Court’s recent DirecTV case. Naturally Imre kicked off the listserv thread Jill mentioned yesterday. And here’s a link to Imre’s arbitration blog for further info on the case. Earlier today, the Supreme Court issued its decision in DirecTV v Imburgia. Three issues struck me after reading the decision: 1) a majority of the Justices re-affirmed (and in my mind, expanded) the broad preemptive powers of the FAA and lost...
More on DirectTV v. Imburgia
January 18, 2016
DIRECTV v. Imburgia involved an arbitration clause with a class action waiver in the satellite television service provider’s customer agreement. The clause at issue provided that the entire arbitration provision would not be enforceable if the “law of your state” makes the class action waiver unenforceable. Since California’s Discover Bank rule deemed unconscionable class action waivers in adhesive consumer services agreements with pre-dispute arbitration clauses, the California court...
January 18, 2016
DIRECTV v. Imburgia involved an arbitration clause with a class action waiver in the satellite television service provider’s customer agreement. The clause at issue provided that the entire arbitration provision would not be enforceable if the “law of your state” makes the class action waiver unenforceable. Since California’s Discover Bank rule deemed unconscionable class action waivers in adhesive consumer services agreements with pre-dispute arbitration clauses, the California court...
SCOTUS Hands Down DirecTV v. Imburgia Opinion
January 18, 2016
Today the Supreme Court handed down its opinion in DirecTV v. Imburgia today. No surprises here – the FAA acts as glue when there is an arbitration clause in a contract. Maybe most surprising in Justice Breyer’s opinion is the “and we mean it” exhortation to the lower courts. In an ironic twist, this finger-wagging to the CA Supreme Court is reminiscent of that court’s finger-wagging to California’s lower courts about mediation confidentiality.
January 18, 2016
Today the Supreme Court handed down its opinion in DirecTV v. Imburgia today. No surprises here – the FAA acts as glue when there is an arbitration clause in a contract. Maybe most surprising in Justice Breyer’s opinion is the “and we mean it” exhortation to the lower courts. In an ironic twist, this finger-wagging to the CA Supreme Court is reminiscent of that court’s finger-wagging to California’s lower courts about mediation confidentiality.
FINRA Dispute Resolution Task Force Issues its Final Report and Recommendations
January 15, 2016
Key recommendations include: Increase compensation to FINRA arbitrators, which is well-known to be far below market rates for arbitrators’ time and expertise, because of the Task Force’s “strongly held opinion… that the most important investment in the future of the FINRA forum is in the arbitrators”; Increase the depth and diversity of the arbitrator and mediator pool through additional recruitment efforts; Increase arbitrator training; Adopt measures to encourage the writing...
January 15, 2016
Key recommendations include: Increase compensation to FINRA arbitrators, which is well-known to be far below market rates for arbitrators’ time and expertise, because of the Task Force’s “strongly held opinion… that the most important investment in the future of the FINRA forum is in the arbitrators”; Increase the depth and diversity of the arbitrator and mediator pool through additional recruitment efforts; Increase arbitrator training; Adopt measures to encourage the writing...
