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Up Narrow Arbitration Clause Creek without a Papalote?—Narrow Arbitration Clauses and the Difference between Interpretation and Performance
April 30, 2019
I am told “papalote” is a Spanish word meaning “kite” or “hang glider.” It also appears in the name of a party to a recent decision of the U.S. Court of Appeals for the Fifth Circuit concerning narrow arbitration clauses, Papalote Creek II, L.L.C. v. Lower Colo. River Auth., No. 17-50852, slip op. (5th Cir. Mar. 15, 2019) (“Papalote II”). The party was Papalote Creek II, L.L.C. (“Papalote”). It won the appeal. What was the appeal about? Narrow arbitration clauses,...
April 30, 2019
I am told “papalote” is a Spanish word meaning “kite” or “hang glider.” It also appears in the name of a party to a recent decision of the U.S. Court of Appeals for the Fifth Circuit concerning narrow arbitration clauses, Papalote Creek II, L.L.C. v. Lower Colo. River Auth., No. 17-50852, slip op. (5th Cir. Mar. 15, 2019) (“Papalote II”). The party was Papalote Creek II, L.L.C. (“Papalote”). It won the appeal. What was the appeal about? Narrow arbitration clauses,...
Silence is Golden!
April 29, 2019
I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make...
April 29, 2019
I came upon an article in the July 2018 ABA Journal (volume 104) entitled, “Sounds of Silence” by Philip N. Meyer (pp. 22-23.) ( “ABA Article”). The ABA article notes that a pause at the right moment can be a very powerful tool. It cites an oral argument in which the issue was whether the police had waited long enough after knocking before entering an apartment to execute a search warrant. The police had waited 25 seconds which the defense argued was insufficient. To make...
About $10 billion In Child Support Goes Uncollected
April 28, 2019
From CBS News: R&B singer R. Kelly stopped making child support payments almost a year ago after his former wife came forward with allegations of abuse. He proceeded to rack up a $161,000 support bill that was paid only after spending a weekend in jail. But Kelly isn't alone. A U.S. Census report estimates that just 43.5 percent of custodial parents get the full amount of support they're entitled to. And more than 30 percent don't receive anything at all.
April 28, 2019
From CBS News: R&B singer R. Kelly stopped making child support payments almost a year ago after his former wife came forward with allegations of abuse. He proceeded to rack up a $161,000 support bill that was paid only after spending a weekend in jail. But Kelly isn't alone. A U.S. Census report estimates that just 43.5 percent of custodial parents get the full amount of support they're entitled to. And more than 30 percent don't receive anything at all.
Judicial Analytics Platform Launches for California with $2M in Seed Funding
April 27, 2019
In a December column at Above the Law, I wrote about the growing market of legal technology tools devoted to litigation...
April 27, 2019
In a December column at Above the Law, I wrote about the growing market of legal technology tools devoted to litigation...
Kentucky Legislature Reaffirms the Right of Employers to Require Employees to Arbitrate
April 26, 2019
You might recall SCOTUS’s 2017 smack down of a Kentucky common law rule regulating the formation of an arbitration agreement in Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017). Liz wrote about the case here and here. Basically, in the case, the Kentucky Supreme Court said some unkind things about arbitration, reminiscent of the old-time hostility that the FAA was designed to overcome. More particularly, three wrongful death cases...
April 26, 2019
You might recall SCOTUS’s 2017 smack down of a Kentucky common law rule regulating the formation of an arbitration agreement in Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017). Liz wrote about the case here and here. Basically, in the case, the Kentucky Supreme Court said some unkind things about arbitration, reminiscent of the old-time hostility that the FAA was designed to overcome. More particularly, three wrongful death cases...
Supreme Court Decides Lamps Plus v. Varela: No Surprises Here
April 25, 2019
Today, the Supreme Court somewhat expanded its view that silent arbitration agreements that make no mention of class proceedings, cannot be interpreted as permitting class actions in arbitration. In Lamps Plus Inc. v. Varela, the Court reversed a Ninth Circuit decision holding that an ambiguous agreement can be interpreted to permit a class arbitration. Accepting that the agreement was ambiguous, the Court rejected the California state rule that ambiguity allows a court to construe the language...
April 25, 2019
Today, the Supreme Court somewhat expanded its view that silent arbitration agreements that make no mention of class proceedings, cannot be interpreted as permitting class actions in arbitration. In Lamps Plus Inc. v. Varela, the Court reversed a Ninth Circuit decision holding that an ambiguous agreement can be interpreted to permit a class arbitration. Accepting that the agreement was ambiguous, the Court rejected the California state rule that ambiguity allows a court to construe the language...
Breaking News: SCOTUS Surprises Absolutely No One in Lamps Plus, Inc. v. Varela
April 25, 2019
It’s not at all evident to me why SCOTUS felt the need to grant review of in Lamps Plus, Inc. v. Varela. But it did. And the majority decision, authored by Chief Justice Roberts, did precisely what I think that everyone who looked at the case expected: it held that courts cannot find the necessary consent to class arbitration in an ambiguous arbitration clause. (See Liz’s prediction, for instance (“In my view, the issue of class arbitration has largely been hammered out.”) Still,...
April 25, 2019
It’s not at all evident to me why SCOTUS felt the need to grant review of in Lamps Plus, Inc. v. Varela. But it did. And the majority decision, authored by Chief Justice Roberts, did precisely what I think that everyone who looked at the case expected: it held that courts cannot find the necessary consent to class arbitration in an ambiguous arbitration clause. (See Liz’s prediction, for instance (“In my view, the issue of class arbitration has largely been hammered out.”) Still,...
Pew Charitable Trusts Calls for Standardization of US Court ODR Programs
April 25, 2019
The Pew Charitable Trusts (“Pew”) has reportedly issued a call for the establishment of a national body to standardize online dispute resolution (“ODR”) procedures in civil courts across the United States. According to a recent organization publication, a national set of standards is warranted due to the rapid expansion of state and local court ODR programs. State and local courts across the United States are beginning to adopt an adjudication...
April 25, 2019
The Pew Charitable Trusts (“Pew”) has reportedly issued a call for the establishment of a national body to standardize online dispute resolution (“ODR”) procedures in civil courts across the United States. According to a recent organization publication, a national set of standards is warranted due to the rapid expansion of state and local court ODR programs. State and local courts across the United States are beginning to adopt an adjudication...
Making Mediation More Attractive For Investor-State Disputes
April 24, 2019
For many years, arbitration has been the de facto vehicle of choice for the resolution of investor-state disputes. However, despite the wholesale and widespread adoption of mediation in every sort of dispute, mediation is used rarely in investor-state disputes (Systra v. Philippines is one example). As of this writing, only 11 (1.3% of total ICSID cases) known conciliations—a procedure similar to mediation—have been recorded by ICSID. Even rarer are instances of tribunals...
April 24, 2019
For many years, arbitration has been the de facto vehicle of choice for the resolution of investor-state disputes. However, despite the wholesale and widespread adoption of mediation in every sort of dispute, mediation is used rarely in investor-state disputes (Systra v. Philippines is one example). As of this writing, only 11 (1.3% of total ICSID cases) known conciliations—a procedure similar to mediation—have been recorded by ICSID. Even rarer are instances of tribunals...
SCOTX Asked to Weigh in on Oil & Gas Arbitration Dispute
April 23, 2019
An oil company and several related entities have asked the Supreme Court of Texas to consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan Wagner on...
April 23, 2019
An oil company and several related entities have asked the Supreme Court of Texas to consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan Wagner on...
