Menu
Blog Archives
What In-House Counsel Need To Know About Their Form Arbitration Clauses
August 31, 2017
Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical. Careful review of that clause surely must be a component of your enterprise’s risk analysis. Here are 10 basic considerations that will help to guide that review. 1. How Will The Arbitration Be Managed? [See...
August 31, 2017
Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical. Careful review of that clause surely must be a component of your enterprise’s risk analysis. Here are 10 basic considerations that will help to guide that review. 1. How Will The Arbitration Be Managed? [See...
Commenting on Tentative California Confidentiality Recommendation
August 30, 2017
On June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create...
August 30, 2017
On June 22, 2017, the California Law Revision Commission issued its Tentative Recommendation following its study to create...
W. D. of Pennsylvania Addresses Optional Appeal to Second Arbitration Tribunal
August 30, 2017
It is very rare to see a court decision addressing whether an optional appeal to a second arbitration tribunal is available under the applicable arbitration agreement and arbitration rules to a party disappointed by a first tribunal’s arbitration award. In DeMuth v. Navient Solutions, LLC, Civ. Action No. 17-675 (W.D. Pa., August 15, 2017), though, Judge Nora Berry Fischer of the US District Court for the Western District of Pennsylvania ruled that the question of whether an appeal of an American...
August 30, 2017
It is very rare to see a court decision addressing whether an optional appeal to a second arbitration tribunal is available under the applicable arbitration agreement and arbitration rules to a party disappointed by a first tribunal’s arbitration award. In DeMuth v. Navient Solutions, LLC, Civ. Action No. 17-675 (W.D. Pa., August 15, 2017), though, Judge Nora Berry Fischer of the US District Court for the Western District of Pennsylvania ruled that the question of whether an appeal of an American...
Second Circuit Reverses Judge Rakoff in Uber Arbitration Decision
August 30, 2017
In a highly-anticipated decision (at least for those in the arbitration world), the Second Circuit yesterday vacated the district court’s opinion in Meyer v. Kalanick, 200 F. Supp.3d 408 (S.D.N.Y. 2016), which was authored by the well-known Judge Jed Rakoff. The Second Circuit, in Meyer v. Uber Technologies, 2017 WL 3526682 (Aug. 17, 2017), found that plaintiffs, a putative class of Uber riders asserting price-fixing claims against Uber and its former CEO Travis Kalanick, received sufficient...
August 30, 2017
In a highly-anticipated decision (at least for those in the arbitration world), the Second Circuit yesterday vacated the district court’s opinion in Meyer v. Kalanick, 200 F. Supp.3d 408 (S.D.N.Y. 2016), which was authored by the well-known Judge Jed Rakoff. The Second Circuit, in Meyer v. Uber Technologies, 2017 WL 3526682 (Aug. 17, 2017), found that plaintiffs, a putative class of Uber riders asserting price-fixing claims against Uber and its former CEO Travis Kalanick, received sufficient...
California Law Revision Commission on Mediation Confidentiality
August 29, 2017
The California Law Revision Commission has issued a tentative recommendation regarding mediation confidentiality, with a particular focus on the circumstance in which there is alleged misconduct during the course of a mediation (and evidence from the mediation is sought in a subsequent suit). [http://www.clrc.ca.gov/K402.html] At 158 pages, the report is thorough, and in many places, thoughtful. The line drawing involved is difficult, and the tentative recommendation has drawn some energized...
August 29, 2017
The California Law Revision Commission has issued a tentative recommendation regarding mediation confidentiality, with a particular focus on the circumstance in which there is alleged misconduct during the course of a mediation (and evidence from the mediation is sought in a subsequent suit). [http://www.clrc.ca.gov/K402.html] At 158 pages, the report is thorough, and in many places, thoughtful. The line drawing involved is difficult, and the tentative recommendation has drawn some energized...
5th Circuit Once Again Upholds Class Waiver Absent an Arbitration Agreement
August 29, 2017
The United States Court of Appeals for the Fifth Circuit has once again overturned a National Labor Relations Board (“NLRB”)...
August 29, 2017
The United States Court of Appeals for the Fifth Circuit has once again overturned a National Labor Relations Board (“NLRB”)...
Uber Uses Arbitration (And Clean Design) To Put Brakes On Consumer Class Action
August 29, 2017
Last Thursday, the Second Circuit found that the arbitration agreement in Uber’s Terms of Service was conspicuous enough to be binding and enforceable. As a result, the claims of a putative class of consumers will be dismissed unless they can show that Uber waived its right to arbitrate their claims. Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017). [This proves my point from last week, that formation is one of the big issues this year in arbitration law.] For...
August 29, 2017
Last Thursday, the Second Circuit found that the arbitration agreement in Uber’s Terms of Service was conspicuous enough to be binding and enforceable. As a result, the claims of a putative class of consumers will be dismissed unless they can show that Uber waived its right to arbitrate their claims. Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017). [This proves my point from last week, that formation is one of the big issues this year in arbitration law.] For...
What Duties do Lead Counsel Owe Plaintiffs in MDL?
August 28, 2017
Either way, as Judge Herndon (and lead lawyers) framed it, even if the dissatisfied plaintiffs sued individually, federal question jurisdiction would lie over their claims, thereby allowing defendants to remove and send it to Judge Herndon. Judge Herndon, you may recall, presided over the original claims and appointed the leaders in the first place. There hasn't been a ton written on the fiduciary question, but Professor Charlie Silver's work comes readily to mind. In his article, The Responsibilities...
August 28, 2017
Either way, as Judge Herndon (and lead lawyers) framed it, even if the dissatisfied plaintiffs sued individually, federal question jurisdiction would lie over their claims, thereby allowing defendants to remove and send it to Judge Herndon. Judge Herndon, you may recall, presided over the original claims and appointed the leaders in the first place. There hasn't been a ton written on the fiduciary question, but Professor Charlie Silver's work comes readily to mind. In his article, The Responsibilities...
New PACER Resource From Free Law Project and GSU Researchers
August 28, 2017
With appreciation to Charlotte Alexander (Georgia State) for alerting me to this development and assisting with this post, information on a new PACER resource follows. For researchers who study the federal courts, litigation patterns and outcomes, and judicial decisionmaking, the Free Law Project (FLP) operates the RECAP Archive, which seeks to reproduce the contents of the Public Access to Electronic Court Records (PACER) system in a single, comprehensive, searchable database (RECAP is PACER...
August 28, 2017
With appreciation to Charlotte Alexander (Georgia State) for alerting me to this development and assisting with this post, information on a new PACER resource follows. For researchers who study the federal courts, litigation patterns and outcomes, and judicial decisionmaking, the Free Law Project (FLP) operates the RECAP Archive, which seeks to reproduce the contents of the Public Access to Electronic Court Records (PACER) system in a single, comprehensive, searchable database (RECAP is PACER...
Arbitrability And Tax
August 28, 2017
William W. Park (Boston University), Arbitrability and Tax: Although arguments exist that fiscal disputes should remain beyond private adjudication, implicating as they do the sovereign prerogative of revenue raising, the practice proves very much to the contrary. Arbitration of tax-related disputes proves very much a reality despite doctrinal objections. The amenability of such disputes to arbitration remains highly fact-intensive, with no hard-and-fast rule prohibiting all tax arbitration per se, while...
August 28, 2017
William W. Park (Boston University), Arbitrability and Tax: Although arguments exist that fiscal disputes should remain beyond private adjudication, implicating as they do the sovereign prerogative of revenue raising, the practice proves very much to the contrary. Arbitration of tax-related disputes proves very much a reality despite doctrinal objections. The amenability of such disputes to arbitration remains highly fact-intensive, with no hard-and-fast rule prohibiting all tax arbitration per se, while...
