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Alabama Won’t Enforce Arbitration With Nursing Home When Patient Had Dementia
November 14, 2018
Every time I think the spate of state supreme court opinions about nursing home arbitration surely must be over, another one comes out to prove me wrong. Last week, it was one from Alabama, finding an arbitration agreement was never formed, because the resident lacked capacity and the daughter who signed on his behalf lacked power of attorney. In Stephan v. Millennium Nursing & Rehab Ctr., 2018 WL 4846501 (Ala. Oct. 5, 2018), the decedent’s estate sued the nursing home for wrongful death. ...
November 14, 2018
Every time I think the spate of state supreme court opinions about nursing home arbitration surely must be over, another one comes out to prove me wrong. Last week, it was one from Alabama, finding an arbitration agreement was never formed, because the resident lacked capacity and the daughter who signed on his behalf lacked power of attorney. In Stephan v. Millennium Nursing & Rehab Ctr., 2018 WL 4846501 (Ala. Oct. 5, 2018), the decedent’s estate sued the nursing home for wrongful death. ...
Delegating Arbitrability To Arbitrator Is Effective In Denying Class Actions
June 26, 2018
I have been making my way through the rest of the May arbitration cases (the photo shows how high my stack got), and one thing that stands out is this: I was right. Delegation clauses remain a hot topic in arbitration law. Three recent cases demonstrate the power of having a delegation clause in an arbitration agreement. The Fifth Circuit enforced a delegation clause in Edwards v. DoorDash, 2018 WL 1954090 (5th Cir. Apr. 25, 2018), a case involving a putative FLSA class action brought...
June 26, 2018
I have been making my way through the rest of the May arbitration cases (the photo shows how high my stack got), and one thing that stands out is this: I was right. Delegation clauses remain a hot topic in arbitration law. Three recent cases demonstrate the power of having a delegation clause in an arbitration agreement. The Fifth Circuit enforced a delegation clause in Edwards v. DoorDash, 2018 WL 1954090 (5th Cir. Apr. 25, 2018), a case involving a putative FLSA class action brought...
Spring State Court Smorgasbord: Seven Decisions Friendly To Arbitration
May 16, 2018
The others can be reviewed more quickly: Substantive unconscionability cannot be established by showing only that the arbitration agreement is broad in scope. The Federal Arbitration Act applies to arbitration agreements within a common interest community’s covenants (and preempts conflicting state law). Non-signatories may compel arbitration if the plaintiff’s claims are based on facts that are “intertwined” with arbitrable claims. Scope of arbitration agreement broad...
May 16, 2018
The others can be reviewed more quickly: Substantive unconscionability cannot be established by showing only that the arbitration agreement is broad in scope. The Federal Arbitration Act applies to arbitration agreements within a common interest community’s covenants (and preempts conflicting state law). Non-signatories may compel arbitration if the plaintiff’s claims are based on facts that are “intertwined” with arbitrable claims. Scope of arbitration agreement broad...
Non-Signatories Succeed In Compelling Arbitration In State Courts
November 8, 2017
The high courts of two states have allowed non-signatories to compel arbitration in recent weeks. The cases show courts...
November 8, 2017
The high courts of two states have allowed non-signatories to compel arbitration in recent weeks. The cases show courts...
Lessons From Two Auto Dealer Arbitrations About Nonsignatories
September 22, 2017
In two recent decisions, the Alabama Supreme Court made clear that if an arbitration clause specifies it only applies to disputes between the two parties who sign the clause, that will be strictly enforced. No third party can enforce the arbitration agreement. In Nissan N. Am. v. Scott, 2017 WL 3446129 (Ala. Aug. 11, 2017), a customer brought suit in court against Nissan and its dealership, after her car (a “Juke” in case you are curious) spontaneously caught fire. The purchase agreement...
September 22, 2017
In two recent decisions, the Alabama Supreme Court made clear that if an arbitration clause specifies it only applies to disputes between the two parties who sign the clause, that will be strictly enforced. No third party can enforce the arbitration agreement. In Nissan N. Am. v. Scott, 2017 WL 3446129 (Ala. Aug. 11, 2017), a customer brought suit in court against Nissan and its dealership, after her car (a “Juke” in case you are curious) spontaneously caught fire. The purchase agreement...
SCOTUS Hearing Arbitration Case, Spotlight On State Cases
March 14, 2017
While the Supreme Court has put off hearing a more contentious arbitration case until the fall (presumably in hopes that it will have nine justices by then), tomorrow it will hear the nursing home arbitration case from Kentucky. I look forward to listening to the questions and trying to figure out why the Justices granted a review on the merits… Instead of repeating my analysis of the Kentucky case, here are some recent state court arbitration cases of interest (in addition to the three...
March 14, 2017
While the Supreme Court has put off hearing a more contentious arbitration case until the fall (presumably in hopes that it will have nine justices by then), tomorrow it will hear the nursing home arbitration case from Kentucky. I look forward to listening to the questions and trying to figure out why the Justices granted a review on the merits… Instead of repeating my analysis of the Kentucky case, here are some recent state court arbitration cases of interest (in addition to the three...
Two States Buck FAA Preemption, While Alabama Stays the Course
March 8, 2017
Three state supreme courts tackled arbitration law in recent weeks: Alabama, North Carolina, and Rhode Island. Rhode Island reversed a construction arbitration award because it disagreed with the arbitrator’s analysis. North Carolina found that an arbitration agreement in a doctor-patient setting was unenforceable as a breach of the doctor’s fiduciary duty. And Alabama strictly enforced an arbitral venue, even though that precluded class action. Continuing its streak of hewing closely...
March 8, 2017
Three state supreme courts tackled arbitration law in recent weeks: Alabama, North Carolina, and Rhode Island. Rhode Island reversed a construction arbitration award because it disagreed with the arbitrator’s analysis. North Carolina found that an arbitration agreement in a doctor-patient setting was unenforceable as a breach of the doctor’s fiduciary duty. And Alabama strictly enforced an arbitral venue, even though that precluded class action. Continuing its streak of hewing closely...
2016 in Arbitration Law: Fleeting Victories for Consumer Advocates?
January 20, 2017
If I had drafted this annual summary post on November 7, 2016, it would have looked different. At that point, the year had produced numerous (final or proposed) federal regulations that significantly restricted the use of arbitration with consumers in large industries. In addition, Justice Scalia’s death, along with the prospective election of Secretary Clinton, appeared poised to alter the make-up of the U.S. Supreme Court, which has voted 5-4 in many of the critical arbitration decisions in the last...
January 20, 2017
If I had drafted this annual summary post on November 7, 2016, it would have looked different. At that point, the year had produced numerous (final or proposed) federal regulations that significantly restricted the use of arbitration with consumers in large industries. In addition, Justice Scalia’s death, along with the prospective election of Secretary Clinton, appeared poised to alter the make-up of the U.S. Supreme Court, which has voted 5-4 in many of the critical arbitration decisions in the last...
Preemption Parade: FAA Rolls Over Three State Rules
October 17, 2016
Lest anyone think that the preemption doctrine in arbitration has gone dormant, today’s cases should set the record straight. Courts have recently found the FAA preempted state rules in Pennsylvania, South Carolina, and Alabama. The Pennsylvania Supreme Court found that one of its rules of civil procedure was preempted by the FAA in Taylor v Extendicare Health Facilities, Inc., __ A.3d ___, 2016 WL 5630669 (Penn. Sept. 28, 2016). The case involved claims regarding whether a nursing home...
October 17, 2016
Lest anyone think that the preemption doctrine in arbitration has gone dormant, today’s cases should set the record straight. Courts have recently found the FAA preempted state rules in Pennsylvania, South Carolina, and Alabama. The Pennsylvania Supreme Court found that one of its rules of civil procedure was preempted by the FAA in Taylor v Extendicare Health Facilities, Inc., __ A.3d ___, 2016 WL 5630669 (Penn. Sept. 28, 2016). The case involved claims regarding whether a nursing home...
Three Appellate Courts Remand for Trial on Existence of Agreement to Arbitrate
March 16, 2016
Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama. The two federal...
March 16, 2016
Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama. The two federal...
