News
“Manifest Disregard of the Law” is Alive and Well and Vacating Arbitrations in Fourth Circuit
November 21, 2013
The Federal Arbitration Act sets forth only four bases for vacating arbitration awards. See 9 U.S.C. § 10 (a). After SCOTUS’s 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four bases are exclusive, de-legitimizing the creative bases that judges had developed over the years. However, a recent Fourth Circuit opinion vacated an arbitration award for ”manifest disregard of the law,” a judicially-created basis for vacating arbitration...
November 21, 2013
The Federal Arbitration Act sets forth only four bases for vacating arbitration awards. See 9 U.S.C. § 10 (a). After SCOTUS’s 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four bases are exclusive, de-legitimizing the creative bases that judges had developed over the years. However, a recent Fourth Circuit opinion vacated an arbitration award for ”manifest disregard of the law,” a judicially-created basis for vacating arbitration...
Settlement Agreements Rarely Against Public Policy
November 21, 2013
A party who signed a detailed settlement agreement after a lengthy mediation between competing factions of a homeowners association sought to have the court strike certain provisions relating to the board and bylaws, asserting they violated specific statutes and public policy generally. A California appellate court affirmed the trial court’s conclusion that no specific violation of statutes covering common interest developments was shown. Moreover, the challenged settlement provisions did not violate...
November 21, 2013
A party who signed a detailed settlement agreement after a lengthy mediation between competing factions of a homeowners association sought to have the court strike certain provisions relating to the board and bylaws, asserting they violated specific statutes and public policy generally. A California appellate court affirmed the trial court’s conclusion that no specific violation of statutes covering common interest developments was shown. Moreover, the challenged settlement provisions did not violate...
Google Admits the Human Brain Still Beats an Algorithm
November 20, 2013
This past week, there was an old-school battle of wits that captured the world's attention: a chess championship. How quaint! A realm in which the human mind is still king, it was dubbed the most exciting chess championship in decades, with the 22-year-old chess sensation Magnus Carlsen, the "Mozart of chess," at work on the board while the titans of Wall Street hung on the edge of their seats—they claim it's pure interest in the beauty of chess; we imagine they have uses for Carlsen's brain...
November 20, 2013
This past week, there was an old-school battle of wits that captured the world's attention: a chess championship. How quaint! A realm in which the human mind is still king, it was dubbed the most exciting chess championship in decades, with the 22-year-old chess sensation Magnus Carlsen, the "Mozart of chess," at work on the board while the titans of Wall Street hung on the edge of their seats—they claim it's pure interest in the beauty of chess; we imagine they have uses for Carlsen's brain...
California Supreme Court Issues Decision on Arbitration and Labor Commissioner Hearings
November 20, 2013
In 2011, the California Supreme Court held: (1) an employee's statutory right to a wage hearing before the Labor Commissioner, known as a Berman hearing, "with all the possible protections that follow from it, is itself an unwaivable right that an employee cannot be compelled to relinquish as a condition of employment;" (2) waiver of an employee's right to seek such a hearing is a substantively unconscionable contract term; and (3) the Federal Arbitration Act (FAA) does not preempt the Court's holdings...
November 20, 2013
In 2011, the California Supreme Court held: (1) an employee's statutory right to a wage hearing before the Labor Commissioner, known as a Berman hearing, "with all the possible protections that follow from it, is itself an unwaivable right that an employee cannot be compelled to relinquish as a condition of employment;" (2) waiver of an employee's right to seek such a hearing is a substantively unconscionable contract term; and (3) the Federal Arbitration Act (FAA) does not preempt the Court's holdings...
Scope of Emergency Arbitrator’s Power Appealed to Second Circuit
November 20, 2013
On October 21, 2013, in Yahoo! Inc. v. Microsoft Corp., No. 13 CV 7237, 2013 U.S. Dist. LEXIS 151175, at *1 (S.D.N.Y. October 21, 2013), the US District Court for the Southern District of New York upheld an award of injunctive relief issued by an emergency arbitrator appointed by the American Arbitration Association (AAA). Yahoo argued that the arbitrator had exceeded his authority and acted in manifest disregard of the law pursuant to the Federal Arbitration Act, 9 U.S.C. § 10(a)(4) (2006),...
November 20, 2013
On October 21, 2013, in Yahoo! Inc. v. Microsoft Corp., No. 13 CV 7237, 2013 U.S. Dist. LEXIS 151175, at *1 (S.D.N.Y. October 21, 2013), the US District Court for the Southern District of New York upheld an award of injunctive relief issued by an emergency arbitrator appointed by the American Arbitration Association (AAA). Yahoo argued that the arbitrator had exceeded his authority and acted in manifest disregard of the law pursuant to the Federal Arbitration Act, 9 U.S.C. § 10(a)(4) (2006),...
N. D. Texas Holds Prior Arbitration Precludes Fraud Claim in Merger
November 20, 2013
The Northern District of Texas has reportedly dismissed a lawsuit after determining that an arbitration panel’s decision precluded the plaintiffs’ fraud claim. In Murchison Capital Partners LP et al. v. Nuance Communications Inc., No. 3:12-CV-04746, Nuance Communications Inc. (“Nuance”) acquired all of the shares in Dallas, Texas-based Vocada for a lump sum payment and a portion of the three-year earnings of one of the company’s products above a certain revenue level. After...
November 20, 2013
The Northern District of Texas has reportedly dismissed a lawsuit after determining that an arbitration panel’s decision precluded the plaintiffs’ fraud claim. In Murchison Capital Partners LP et al. v. Nuance Communications Inc., No. 3:12-CV-04746, Nuance Communications Inc. (“Nuance”) acquired all of the shares in Dallas, Texas-based Vocada for a lump sum payment and a portion of the three-year earnings of one of the company’s products above a certain revenue level. After...
Eighth Circuit Rejects NFL Retirees’ Objections to Mediated Settlement Due to Exclusion from Mediation
November 20, 2013
Litigation by retired players against the National Football League was consolidated with the active players’ case and sent to mediation, but the retirees were not involved in the mediation to the extent they would have liked, despite the efforts of the mediator to have them included. When the active players reached a settlement with the NFL, the retired players were dissatisfied with only receiving $900 million in additional benefits (over ten years), asserting they could have done better negotiating...
November 20, 2013
Litigation by retired players against the National Football League was consolidated with the active players’ case and sent to mediation, but the retirees were not involved in the mediation to the extent they would have liked, despite the efforts of the mediator to have them included. When the active players reached a settlement with the NFL, the retired players were dissatisfied with only receiving $900 million in additional benefits (over ten years), asserting they could have done better negotiating...
Dispute Resolution Counsel: So What is this Different Kind of Legal Advocacy?
November 19, 2013
One reason we changed the name of our firm recently to Dispute Resolution Counsel was to highlight the role that lawyers play in representing their clients in an alternative dispute resolution (ADR) processes. The role, approach and technique of a lawyer in these situations are different from that of a litigator. The focus and the goal of the process are different and the process itself is different from litigation and trial. In a world of specialization and niches, this different process and different...
November 19, 2013
One reason we changed the name of our firm recently to Dispute Resolution Counsel was to highlight the role that lawyers play in representing their clients in an alternative dispute resolution (ADR) processes. The role, approach and technique of a lawyer in these situations are different from that of a litigator. The focus and the goal of the process are different and the process itself is different from litigation and trial. In a world of specialization and niches, this different process and different...
Lessons on Negotiating With Adversaries
November 19, 2013
In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, discuss a new book by former governor of New Mexico and U.S. ambassador to the United Nations Bill Richardson that provides many lessons to keep in mind when trying to reach an agreement with an adversary, particularly one who seems mercurial and irrational at best.
November 19, 2013
In their Mediation column, Abby Tolchinsky and Ellie Wertheim, partners at Family Mediation, discuss a new book by former governor of New Mexico and U.S. ambassador to the United Nations Bill Richardson that provides many lessons to keep in mind when trying to reach an agreement with an adversary, particularly one who seems mercurial and irrational at best.
Failure to Provide AAA Arbitration Rules to Employee Does Not Render Arbitration Policy Unconscionable
November 19, 2013
In Peng v. First Republic Bank (8/29/13, pub. 9/26/13), --- Cal.App.4th ---, the trial court denied an employer defendant's petition to compel arbitration in an action alleging discrimination and related claims. The Court of Appeal reversed, holding: Failure to attach the AAA arbitration rules to the arbitration policy, by itself, did not render the policy procedurally unconscionable. Slip op. at 6-9.
November 19, 2013
In Peng v. First Republic Bank (8/29/13, pub. 9/26/13), --- Cal.App.4th ---, the trial court denied an employer defendant's petition to compel arbitration in an action alleging discrimination and related claims. The Court of Appeal reversed, holding: Failure to attach the AAA arbitration rules to the arbitration policy, by itself, did not render the policy procedurally unconscionable. Slip op. at 6-9.
