NJ Mulls Arbitration for Disputes Over Out-of-Network Costs
December 8, 2015

New Jersey lawmakers are considering legislation that would establish an arbitration framework to settle disputes between...

Silence In An Arbitration Clause Is Not Golden
December 7, 2015

Corporate counsel have traditionally favored arbitration clauses in consumer and employee contracts. This preference is largely based on the perception that an arbitration clause precludes the dreaded class action. Unfortunately, unless your agreement specifically states that class actions are not permitted, that perception may be wrong. Many courts have held that arbitration clauses that are silent on class actions—but which incorporate the American Arbitration Association rules—will permit...

Justice Scalia’s Hat Trick and the Supreme Court’s Flawed Understanding of Twenty-First Century Arbitration
December 1, 2015

The Supreme Court has decided more than two dozen cases under the Federal Arbitration Act (FAA) since 2000 – arising primarily from commercial, consumer, employment, or securities disputes. Those decisions, particularly those interpreting FAA §2, have contributed to the Court’s modern arbitration jurisprudence that creates a strong national policy favoring arbitration, enforces agreements to arbitrate against virtually any defense, pushes many individual claims into arbitration against the will...

Enforceable Arbitration Requirement May Not Be Worth the Fare
November 27, 2015

The district court in Mohamed et al v. Uber Technologies, Inc., struck down employment arbitration agreements, calling them procedurally and substantively unconscionable. This decision is “the latest front in the assault against the enforceability of arbitration agreements,” says Brian Koji Tampa, FL, cochair of the ABA Section of Litigation’s Employment & Labor Relations Committee. Section leaders believe the decision is a signal for attorneys to consider rethinking the language contained...

Consumer Arbitration in Context
November 25, 2015

The publication by the New York Times of a highly critical series of front-page articles on arbitration of consumer and employment disputes has stirred the pot among practitioners, academics, and others with a stake in Alternative Dispute Resolution. The reportage was flawed, as some in our community were quick to point out. Data took a back seat to anecdotes; perspectives of individual “victims” were given more ink than perspectives of companies; and the reporters failed to note that the Times...

Witnesses in Arbitration – California Arbitration Act
November 20, 2015

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). This article addresses the California Arbitration Act (CAA); significant differences under the Federal Arbitration Act (FAA) will be discussed in Part II. Documents: Some clauses and most rules contemplate an exchange of documents prior to the hearing (e.g., JAMS Comprehensive...

Corpus Christi COA Orders Employment Discrimination Case to Arbitration
November 19, 2015

Texas’ 13th District Court of Appeals has ordered an employment discrimination lawsuit to arbitration. In Ophthalmic Consultants of Texas, P.A. v. Morales, No. 13-15-00278-CV (Tex. App – Corpus Christi, October 15, 2015), an ophthalmology business, Ophthalmic Consultants of Texas, P.A. (“OCT”), apparently hired a physician, Dr. Adolfo Morales, in 2009. As part of his employment contract, Dr. Morales signed a three-page arbitration agreement. In the agreement, the doctor consented to submit...

CFPB Likely To Require Access To Class Actions And Data On Individual Arbitrations
November 17, 2015

Richard Cordray, Director of the Consumer Financial Protection Bureau, has positioned himself as the Boogeyman that financial...

News From NJ: Contracts Require Consent
November 13, 2015

A colleague has brought to our attention the October 26, 2015 opinion of the Superior Court of New Jersey Appellate Division...

Employee Arbitration Agreement Enforceable Even Without Signature
November 13, 2015

In Firstlight Federal Credit Union v. Loya, the Eighth District Court of Appeals held that the trial court abused its discretion in refusing to compel arbitration. The court held that Loya, an at-will employee, was bound by the arbitration agreement as a matter of law despite her lack of signature because she continued working after receiving notice of the arbitration agreement. According to the Court of Appeals, there was evidence that Loya received a notice of the arbitration policy and acknowledged...