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Arbitration
Filing Claim In Court Is Not Enough To Waive Arbitration Right
September 24, 2015
The issue in analyzing whether a party waived its right to arbitrate is usually whether the defendant waited too long to assert the arbitration obligation. But, this week the Second Circuit had the opportunity to address whether a plaintiff waives its right to arbitrate by the simple fact of bringing a case in court. In LG Electronics, Inc. v. Wi-LAN USA, Inc., 2015 WL 5254894 (2d Cir. Sept. 10, 2015), the appellate court affirmed the district court’s decision that defendant Wi-LAN had not waived...
September 24, 2015
The issue in analyzing whether a party waived its right to arbitrate is usually whether the defendant waited too long to assert the arbitration obligation. But, this week the Second Circuit had the opportunity to address whether a plaintiff waives its right to arbitrate by the simple fact of bringing a case in court. In LG Electronics, Inc. v. Wi-LAN USA, Inc., 2015 WL 5254894 (2d Cir. Sept. 10, 2015), the appellate court affirmed the district court’s decision that defendant Wi-LAN had not waived...
California Upholds Controversial Arbitration Clause Within Consumer Contract
September 18, 2015
California is changing its tune. Although previously known for decisions that flouted federal arbitration law, its decision yesterday in Sanchez shows the current California Supreme Court will abide by SCOTUS’s interpretation of the FAA. After a trial court and intermediate appellate court had ruled that the arbitration clause in a consumer contract was unconscionable, the California Supreme Court reversed, finding the clause was enforceable. Sanchez v. Valencia Holding Co., LLC, __ P.3d __, 2015...
September 18, 2015
California is changing its tune. Although previously known for decisions that flouted federal arbitration law, its decision yesterday in Sanchez shows the current California Supreme Court will abide by SCOTUS’s interpretation of the FAA. After a trial court and intermediate appellate court had ruled that the arbitration clause in a consumer contract was unconscionable, the California Supreme Court reversed, finding the clause was enforceable. Sanchez v. Valencia Holding Co., LLC, __ P.3d __, 2015...
Infographic for Compelling Arbitration
September 17, 2015
Making a motion to compel arbitration is trickier than it seems. When people call me for advice, I often have to tell them...
September 17, 2015
Making a motion to compel arbitration is trickier than it seems. When people call me for advice, I often have to tell them...
To (b)(1) or not to (b)(1): What to Call your Rule 12 Arbitration Motion
September 16, 2015
Let’s say your client gets sued in court, the parties have an arbitration agreement, and you want to compel arbitration right away and not mess around with any other court proceedings. You already know you can make a motion to compel instead of an Answer, but you are stuck on this: what do you call the motion? Let’s face it, neither the federal or state rules of civil procedure line up perfectly with the FAA (for example, Rule 12 does not list “motion to compel arbitration” as a potential...
September 16, 2015
Let’s say your client gets sued in court, the parties have an arbitration agreement, and you want to compel arbitration right away and not mess around with any other court proceedings. You already know you can make a motion to compel instead of an Answer, but you are stuck on this: what do you call the motion? Let’s face it, neither the federal or state rules of civil procedure line up perfectly with the FAA (for example, Rule 12 does not list “motion to compel arbitration” as a potential...
Unvacated: 11th Circuit Finds Repeat Arbitrator Not Biased
September 15, 2015
The Eleventh Circuit has a lesson for future litigants: the presence of a repeat player is not enough to show the evident...
September 15, 2015
The Eleventh Circuit has a lesson for future litigants: the presence of a repeat player is not enough to show the evident...
ADR-Related Legislation
September 11, 2015
Larson Frisby, of the ABA Governmental Affairs Office, recently offered an update on the status of federal ADR legislation...
September 11, 2015
Larson Frisby, of the ABA Governmental Affairs Office, recently offered an update on the status of federal ADR legislation...
“Related To” and Arbitration
September 9, 2015
Vocada sued Nuance for securities fraud. They had a merger agreement in which they agreed to arbitrate “any . . . dispute relating to the Earnout Consideration.” The Fifth Circuit found that this claim had to be arbitrated, noting: “Although the arbitration clause as a whole is narrow, the ‘relates to’ language is broad. The clause does not require that the remedy sought in arbitration be the earnout consideration or that the claim relate to how the earnout consideration is calculated...
September 9, 2015
Vocada sued Nuance for securities fraud. They had a merger agreement in which they agreed to arbitrate “any . . . dispute relating to the Earnout Consideration.” The Fifth Circuit found that this claim had to be arbitrated, noting: “Although the arbitration clause as a whole is narrow, the ‘relates to’ language is broad. The clause does not require that the remedy sought in arbitration be the earnout consideration or that the claim relate to how the earnout consideration is calculated...
Delaware Rapid Arbitration Act Rules Now Effective
September 3, 2015
The Delaware Rapid Arbitration Act (DRAA) now has rules. Enacted earlier this year, the intent of the DRAA is to serve as an alternative, confidential, and cost-effective forum for binding arbitrations involving Delaware corporations, LLCs, and other business entities. 10 Del. C. § 5801. Key provisions include limited discovery, default confidentiality rules, a 90-day time frame for a hearing, and, perhaps most notably, docking of the arbitrator’s fee if a decision is not rendered within 120 days...
September 3, 2015
The Delaware Rapid Arbitration Act (DRAA) now has rules. Enacted earlier this year, the intent of the DRAA is to serve as an alternative, confidential, and cost-effective forum for binding arbitrations involving Delaware corporations, LLCs, and other business entities. 10 Del. C. § 5801. Key provisions include limited discovery, default confidentiality rules, a 90-day time frame for a hearing, and, perhaps most notably, docking of the arbitrator’s fee if a decision is not rendered within 120 days...
Opting In or Opting Out: Report on Consumer Arbitration Clauses
August 28, 2015
I am somewhere between a Luddite and a techie, finding prudence in patience when it comes to technology purchases. But since purchasing an iPhone one year ago, which has text-to-speech capabilities, I find myself wanting to obtain the next version of the so-called smartphone. The iPhone has various adaptive features, such as reading the many text-based missives I transmit out loud, not to mention paperwork involved in financial transactions. When I acquire that upgrade, I will do well to read the agreement...
August 28, 2015
I am somewhere between a Luddite and a techie, finding prudence in patience when it comes to technology purchases. But since purchasing an iPhone one year ago, which has text-to-speech capabilities, I find myself wanting to obtain the next version of the so-called smartphone. The iPhone has various adaptive features, such as reading the many text-based missives I transmit out loud, not to mention paperwork involved in financial transactions. When I acquire that upgrade, I will do well to read the agreement...
Alabama Supreme Court Requires Policyholders to Arbitrate
August 27, 2015
In American Bankers Ins. Co. v. Tellis, 062615 ALSC 1131514 (June 26, 2015), the Alabama Supreme Court held that policyholders, who did not sign, read, or even receive insurance forms that contained arbitration agreements, nevertheless, had manifested their assent to the arbitration agreements by affirmatively renewing their policies and paying premiums. Accordingly, the court held that the policyholders were required to arbitrate their claims that American Bankers had sold them homeowners’ insurance...
August 27, 2015
In American Bankers Ins. Co. v. Tellis, 062615 ALSC 1131514 (June 26, 2015), the Alabama Supreme Court held that policyholders, who did not sign, read, or even receive insurance forms that contained arbitration agreements, nevertheless, had manifested their assent to the arbitration agreements by affirmatively renewing their policies and paying premiums. Accordingly, the court held that the policyholders were required to arbitrate their claims that American Bankers had sold them homeowners’ insurance...
