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Arbitration
Another Proposed Class Action Data Breach Lawsuit Ordered to Individual Arbitration
March 21, 2019
In an unpublished opinion, a California federal district court issued an order compelling a putative class...
March 21, 2019
In an unpublished opinion, a California federal district court issued an order compelling a putative class...
Relooking at Consent in Arbitration
March 19, 2019
Consent has long been accepted as the cornerstone of arbitration, until recently. The evolution and expansion of arbitration brought about diverging opinions on the consensual character of arbitration. For example, Stavros Brekoulakis suggested that “[w]hile … a functional concept of consent may enhance the effectiveness of arbitration clauses in complex transactions, it is very difficult to reconcile with fundamental principles of consent.” 1) In the context of binding non-signatories...
March 19, 2019
Consent has long been accepted as the cornerstone of arbitration, until recently. The evolution and expansion of arbitration brought about diverging opinions on the consensual character of arbitration. For example, Stavros Brekoulakis suggested that “[w]hile … a functional concept of consent may enhance the effectiveness of arbitration clauses in complex transactions, it is very difficult to reconcile with fundamental principles of consent.” 1) In the context of binding non-signatories...
A Model Clause for a New Kind of Final Offer Arbitration
March 18, 2019
A recent post discussed the upsides and downsides of the so-called Final Offer Arbitration (“FOA”) also known as Baseball Arbitration. In short, in an FOA, instead of crafting an award from scratch, the arbitral tribunal simply has to pick either party’s final offer on the claims and elevate it to the final award, usually without making any changes or additions. Some institutional rules, however, do allow tribunals to provide supplementary reasons to justify their choice. This...
March 18, 2019
A recent post discussed the upsides and downsides of the so-called Final Offer Arbitration (“FOA”) also known as Baseball Arbitration. In short, in an FOA, instead of crafting an award from scratch, the arbitral tribunal simply has to pick either party’s final offer on the claims and elevate it to the final award, usually without making any changes or additions. Some institutional rules, however, do allow tribunals to provide supplementary reasons to justify their choice. This...
Arbitration Law FAQ: Chapter 1 of the Federal Arbitration Act
March 15, 2019
The Federal Arbitration Act is a federal statute enacted in 1925 that makes certain (but not all) arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. It was originally, and for many years, known as the “United States Arbitration Act,” but for simplicity’s sake we’ll refer to it as the “Federal Arbitration Act,” the “FAA,” or the “Act.” It was passed at a time...
March 15, 2019
The Federal Arbitration Act is a federal statute enacted in 1925 that makes certain (but not all) arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. It was originally, and for many years, known as the “United States Arbitration Act,” but for simplicity’s sake we’ll refer to it as the “Federal Arbitration Act,” the “FAA,” or the “Act.” It was passed at a time...
SEC Issues No-Action Letter Over Shareholder’s Mandatory Arbitration Proposal
March 14, 2019
A division of the United States Securities and Exchange Commission (“SEC”) has issued a no-action letterstating...
March 14, 2019
A division of the United States Securities and Exchange Commission (“SEC”) has issued a no-action letterstating...
A Tale of Two Arbitration Waivers: HTC Corporation v. Telefonaktiebolaget LM Ericsson
March 13, 2019
An ongoing legal battle between smartphone manufacturer HTC Corporation and networking and telecommunications company Ericsson offers a case study in the waiver of arbitration rights in the patent context. In subsequent motions to compel arbitration, the Eastern District of Texas first held that Ericsson did not waive its right to arbitrate certain claims filed against the company but later held HTC waived its right to arbitrate Ericsson’s counterclaims. The dispute...
March 13, 2019
An ongoing legal battle between smartphone manufacturer HTC Corporation and networking and telecommunications company Ericsson offers a case study in the waiver of arbitration rights in the patent context. In subsequent motions to compel arbitration, the Eastern District of Texas first held that Ericsson did not waive its right to arbitrate certain claims filed against the company but later held HTC waived its right to arbitrate Ericsson’s counterclaims. The dispute...
Houston COA Affirms Arbitration Award in Roofing Dispute
March 12, 2019
The First District Court of Appeals in Houston has affirmed a Harris County district court’s order confirming an arbitration award that was issued in favor of a roofing contractor. In Purse v. DeJesus, No. 01-17-00855-CV (Tex. App. – Houston [1st], January 17, 2019), a roofing professional, DeJesus, entered into a contract with a Texas homeowner, Purse, to replace the homeowner’s roof. The parties’ roofing contract contained an arbitration clause. After...
March 12, 2019
The First District Court of Appeals in Houston has affirmed a Harris County district court’s order confirming an arbitration award that was issued in favor of a roofing contractor. In Purse v. DeJesus, No. 01-17-00855-CV (Tex. App. – Houston [1st], January 17, 2019), a roofing professional, DeJesus, entered into a contract with a Texas homeowner, Purse, to replace the homeowner’s roof. The parties’ roofing contract contained an arbitration clause. After...
Henry Schein and the Patent Eligibility Statute
March 11, 2019
In January, Sherry Knowles and Anthony Prosser published an intriguing law review article titled “Unconstitutional Application of 35 U.S.C. § 101 by the U.S. Supreme Court,” 18 J. MARSHALL REV. INTELL. PROP. L. 144 (2018). In the article, the authors argue the United States Supreme Court has interpreted the patent eligibility statute in an unconstitutional manner by allowing judicial exceptions to patent eligibility beyond those specifically included...
March 11, 2019
In January, Sherry Knowles and Anthony Prosser published an intriguing law review article titled “Unconstitutional Application of 35 U.S.C. § 101 by the U.S. Supreme Court,” 18 J. MARSHALL REV. INTELL. PROP. L. 144 (2018). In the article, the authors argue the United States Supreme Court has interpreted the patent eligibility statute in an unconstitutional manner by allowing judicial exceptions to patent eligibility beyond those specifically included...
Finding Light in Arbitration’s Dark Shadow
March 8, 2019
Nicole G. Iannarone, Associate Clinical Professor and Director of the Investor Advocacy Clinic at Georgia State University College of Law, has written “Finding Light in Arbitration’s Dark Shadow,” in response to Professor Benjamin P. Edwards’ recent publication titled “Arbitration’s Dark Shadow,” 18 NEV. LAW J. 427 (2018). In her essay, Professor Iannarone discusses the public availability of arbitration decisions arising out of the Financial...
March 8, 2019
Nicole G. Iannarone, Associate Clinical Professor and Director of the Investor Advocacy Clinic at Georgia State University College of Law, has written “Finding Light in Arbitration’s Dark Shadow,” in response to Professor Benjamin P. Edwards’ recent publication titled “Arbitration’s Dark Shadow,” 18 NEV. LAW J. 427 (2018). In her essay, Professor Iannarone discusses the public availability of arbitration decisions arising out of the Financial...
Fifth Circuit Holds Employers Are Not Required to Notify Workers Who Signed Individual Arbitration Agreements of Pending FLSA Class Litigation
March 7, 2019
The United States Court of Appeals for the Fifth Circuit has ruled a federal district court committed error when it ordered JPMorgan Chase Bank to notify thousands of current and former employees who signed an arbitration agreement waiving their right to engage in collective action against the company about a pending class actioncase. In a case titled In re: JPMorgan Chase & Co., No. 18-20825 (5th Cir., February 21, 2019), a group of Chase employees filed...
March 7, 2019
The United States Court of Appeals for the Fifth Circuit has ruled a federal district court committed error when it ordered JPMorgan Chase Bank to notify thousands of current and former employees who signed an arbitration agreement waiving their right to engage in collective action against the company about a pending class actioncase. In a case titled In re: JPMorgan Chase & Co., No. 18-20825 (5th Cir., February 21, 2019), a group of Chase employees filed...
