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Arbitration
Arbiter Does Not Decide Class Arbitration Status
March 20, 2015
The U.S. Court of Appeals for the Third Circuit has joined the Sixth Circuit in concluding that classwide arbitration should...
March 20, 2015
The U.S. Court of Appeals for the Third Circuit has joined the Sixth Circuit in concluding that classwide arbitration should...
Class Actions: Evolution Toward Merits and Class Discovery Proceeding Together
March 19, 2015
In construction product defect class actions, defendants often argue that discovery should be bifurcated into two phases—“class” and “merits” discovery. These defendants contend that bifurcation helps to alleviate the costs and burdens of a potentially meritless class action in either or both of two ways: (1) by allowing the possibly expensive exploration of the substance of a case to take place only after the proposed class is certified and (2) by preventing the plaintiff’s counsel from...
March 19, 2015
In construction product defect class actions, defendants often argue that discovery should be bifurcated into two phases—“class” and “merits” discovery. These defendants contend that bifurcation helps to alleviate the costs and burdens of a potentially meritless class action in either or both of two ways: (1) by allowing the possibly expensive exploration of the substance of a case to take place only after the proposed class is certified and (2) by preventing the plaintiff’s counsel from...
After Concepcion, Is Your “New” Arbitration Agreement Still Enforceable?
March 19, 2015
In AT&T Mobility LLC v. Concepcion, the U.S. Supreme Court upheld the validity of an arbitration agreement waiving consumers’ right to bring contractual claims as a class, instead requiring such claims to be resolved through arbitration. The Court did so by holding that the Federal Arbitration Act preempted a state rule providing that class action waivers in arbitration agreements were unconscionable and, therefore, unenforceable. 131 S. Ct. 1740, 1753 (2011). Since Concepcion became the law of the land,...
March 19, 2015
In AT&T Mobility LLC v. Concepcion, the U.S. Supreme Court upheld the validity of an arbitration agreement waiving consumers’ right to bring contractual claims as a class, instead requiring such claims to be resolved through arbitration. The Court did so by holding that the Federal Arbitration Act preempted a state rule providing that class action waivers in arbitration agreements were unconscionable and, therefore, unenforceable. 131 S. Ct. 1740, 1753 (2011). Since Concepcion became the law of the land,...
Class Actions 101: Settlements
March 18, 2015
You have navigated the treacherous waters of class action litigation and finally negotiated a settlement after years of hard labor. So now the parties just have to sign off on the agreement and get it before the presiding judge for approval, correct? Well, it’s not quite that simple most of the time. Due in large part to the magnitude of the settlement affecting absent class members, there are several mileposts to surmount to obtaining final approval of the settlement. Below are some procedures...
March 18, 2015
You have navigated the treacherous waters of class action litigation and finally negotiated a settlement after years of hard labor. So now the parties just have to sign off on the agreement and get it before the presiding judge for approval, correct? Well, it’s not quite that simple most of the time. Due in large part to the magnitude of the settlement affecting absent class members, there are several mileposts to surmount to obtaining final approval of the settlement. Below are some procedures...
Ninth Circuit Rescues Gambling Las Vegas Arbitrator
March 16, 2015
Here in the United States, where most otherwise-retired lawyers, and a fair number of late-career pastry chefs and insurance sellers, seek to reinvent as commercial arbitrators, the warning to aspiring arbitrators “not to give up [their] day job[s],” at least not without a healthy sustaining pension, is often heard. But one arbitrator in Las Vegas heeded this warning a bit too seriously, causing enough “evident partiality” havoc in the federal district court there to move the 9th Circuit...
March 16, 2015
Here in the United States, where most otherwise-retired lawyers, and a fair number of late-career pastry chefs and insurance sellers, seek to reinvent as commercial arbitrators, the warning to aspiring arbitrators “not to give up [their] day job[s],” at least not without a healthy sustaining pension, is often heard. But one arbitrator in Las Vegas heeded this warning a bit too seriously, causing enough “evident partiality” havoc in the federal district court there to move the 9th Circuit...
District Court Had Inadequate Cause for Intervention in an Arbirtration
March 9, 2015
In Sussex v. U.S. Dist. Ct. for the Dt. of Nevada, Las Vegas, Petitioners filed a writ of mandamus seeking to overturn the District Court's disqualification of an arbitrator for "evident partiality." The underlying arbitration involved several civil actions against Turnberry/MGM Grand Towers, LLC, the developer and seller of a condominium project. Turnberry sought removal of the arbitrator, who had become involved in business ventures, which he characterized as "completely dormant," through which...
March 9, 2015
In Sussex v. U.S. Dist. Ct. for the Dt. of Nevada, Las Vegas, Petitioners filed a writ of mandamus seeking to overturn the District Court's disqualification of an arbitrator for "evident partiality." The underlying arbitration involved several civil actions against Turnberry/MGM Grand Towers, LLC, the developer and seller of a condominium project. Turnberry sought removal of the arbitrator, who had become involved in business ventures, which he characterized as "completely dormant," through which...
Second Circuit Refuses to Enjoin a Second Arbitration of the Same Claims
March 5, 2015
The Second Circuit recently affirmed a district court’s refusal to enjoin an arbitration proceeding under the All Writs Act. The parties to the dispute had been involved in a prior arbitration that resulted in an award confirmed by the district court. While the confirmation judgment was on appeal, one of the parties instituted a second arbitration raising claims similar to those asserted in the first arbitration. The respondent, Citigroup, Inc., filed suit in the Southern District of New York,...
March 5, 2015
The Second Circuit recently affirmed a district court’s refusal to enjoin an arbitration proceeding under the All Writs Act. The parties to the dispute had been involved in a prior arbitration that resulted in an award confirmed by the district court. While the confirmation judgment was on appeal, one of the parties instituted a second arbitration raising claims similar to those asserted in the first arbitration. The respondent, Citigroup, Inc., filed suit in the Southern District of New York,...
CPR Forges the Future, Redefines “Winning,” at Annual Meeting
March 4, 2015
The International Institute for Conflict Prevention & Resolution (CPR) held its 2015 Annual Meeting on Feb. 19-21, 2015,...
March 4, 2015
The International Institute for Conflict Prevention & Resolution (CPR) held its 2015 Annual Meeting on Feb. 19-21, 2015,...
Ninth Circuit Grants Mandamus to Vacate Order Disqualifying Arbitrator
March 4, 2015
In In Re Sussex, No. 14-70158 (9th Cir. Jan. 27, 2015), the Ninth Circuit determined that the district court erred in holding that its decision to intervene mid-arbitration was justified under Aerojet-General Corp. v. Am Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973). Specifically, the panel held that the district court erred in predicting that an award issued by the arbitrator would likely be vacated because of his evident partiality under the Federal Arbitration Act, 9 U.S.C. § 10(a)(2). The panel...
March 4, 2015
In In Re Sussex, No. 14-70158 (9th Cir. Jan. 27, 2015), the Ninth Circuit determined that the district court erred in holding that its decision to intervene mid-arbitration was justified under Aerojet-General Corp. v. Am Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973). Specifically, the panel held that the district court erred in predicting that an award issued by the arbitrator would likely be vacated because of his evident partiality under the Federal Arbitration Act, 9 U.S.C. § 10(a)(2). The panel...
Southern District of New York: “If You Want Strict Application of the Law, Don’t Agree to Arbitration Clauses”
March 3, 2015
A federal judge in the Southern District of New York recently denied a motion to vacate an arbitration award in a reinsurance dispute, scolding the movant for complaining that the arbitrators reached a compromise verdict. The movant, the ceding insurer, argued that two of the three members of the arbitration panel had engaged in “manifest disregard of the law” by failing to properly apply the “follow the fortunes” doctrine when they disallowed reimbursement for several claims. The movant...
March 3, 2015
A federal judge in the Southern District of New York recently denied a motion to vacate an arbitration award in a reinsurance dispute, scolding the movant for complaining that the arbitrators reached a compromise verdict. The movant, the ceding insurer, argued that two of the three members of the arbitration panel had engaged in “manifest disregard of the law” by failing to properly apply the “follow the fortunes” doctrine when they disallowed reimbursement for several claims. The movant...
