Supreme Court
NJ Court Says Mediation Agreements Must Be in Writing
August 21, 2013
Mediation agreements will not be enforced unless the terms are put in writing and signed by the parties before the mediation comes to a close, the state Supreme Court says. Where the terms are too complex to be drafted that same day, the mediation should be continued for "a brief but reasonable period of time to allow for the signing of the settlement." The bright-line rule is meant to prevent litigation over what occurred at mediation because mediation should help resolve disputes expeditiously,...
August 21, 2013
Mediation agreements will not be enforced unless the terms are put in writing and signed by the parties before the mediation comes to a close, the state Supreme Court says. Where the terms are too complex to be drafted that same day, the mediation should be continued for "a brief but reasonable period of time to allow for the signing of the settlement." The bright-line rule is meant to prevent litigation over what occurred at mediation because mediation should help resolve disputes expeditiously,...
Supreme Court Closes Class Action Loophole
August 14, 2013
The United States Supreme Court attempted to close the door on litigants doing an end-run around the Class Action Fairness Act (CAFA) requirement that certain class actions be filed in federal court. Some plaintiffs attempted to file class actions subject to CAFA in more favorable state court venues. The Supreme Court attempts to end this practice but its ruling may give rise to more litigation over remand and removal. Standard Fire v. Knowles. Creative Avoidance of Federal Jurisdiction CAFA...
August 14, 2013
The United States Supreme Court attempted to close the door on litigants doing an end-run around the Class Action Fairness Act (CAFA) requirement that certain class actions be filed in federal court. Some plaintiffs attempted to file class actions subject to CAFA in more favorable state court venues. The Supreme Court attempts to end this practice but its ruling may give rise to more litigation over remand and removal. Standard Fire v. Knowles. Creative Avoidance of Federal Jurisdiction CAFA...
FAA Pre-Emption of State Law Limits on Arbitration: The Ninth Circuit Grapples with Concepcion
July 29, 2013
In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration. The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s...
July 29, 2013
In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration. The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s...
Is Wrongful Death Lawsuit Subject to Arbitration?
July 25, 2013
Over at health law prof blog, Katharine Van Tassel reports about a cert petition filed at the Supreme Court. I hope the Court takes the case! See http://lawprofessors.typepad.com/healthlawprof_blog/ (July 7th post) “In early 2013, a nursing home operator filed a writ of certiorari asking the U.S. Supreme Court to determine whether state courts can refuse to enforce an arbitration agreement signed by the now deceased resident in a wrongful death action brought by the resident’s survivors under...
July 25, 2013
Over at health law prof blog, Katharine Van Tassel reports about a cert petition filed at the Supreme Court. I hope the Court takes the case! See http://lawprofessors.typepad.com/healthlawprof_blog/ (July 7th post) “In early 2013, a nursing home operator filed a writ of certiorari asking the U.S. Supreme Court to determine whether state courts can refuse to enforce an arbitration agreement signed by the now deceased resident in a wrongful death action brought by the resident’s survivors under...
SCOTUS Affirms Arbitrator’s Decision To Allow Class Arbitration in Sutter
July 19, 2013
The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties’ agreement, her “construction holds, however good, bad, or ugly.” Oxford Health Plans LLC v. Sutter, 569 U.S. ___ (June 10, 2013). The case resolved a circuit split on how to interpret SCOTUS’ Stolt-Nielsen decision. It also proved me right (yahoo!). (I predicted the Court would affirm...
July 19, 2013
The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties’ agreement, her “construction holds, however good, bad, or ugly.” Oxford Health Plans LLC v. Sutter, 569 U.S. ___ (June 10, 2013). The case resolved a circuit split on how to interpret SCOTUS’ Stolt-Nielsen decision. It also proved me right (yahoo!). (I predicted the Court would affirm...
Supreme Court Limits ATS Litigation—But Door Remains Slightly Ajar
July 16, 2013
In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the U.S. Supreme Court addressed the applicability of the Alien Tort Statute (ATS) to alleged violations of international law committed by multinational corporations overseas. Although the Supreme Court rejected the claims in Kiobel because of the presumption against the extraterritorial application of statutes such as the ATS, the Supreme Court did not completely slam the door shut on ATS litigation. What types of ATS cases survive Kiobel will...
July 16, 2013
In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the U.S. Supreme Court addressed the applicability of the Alien Tort Statute (ATS) to alleged violations of international law committed by multinational corporations overseas. Although the Supreme Court rejected the claims in Kiobel because of the presumption against the extraterritorial application of statutes such as the ATS, the Supreme Court did not completely slam the door shut on ATS litigation. What types of ATS cases survive Kiobel will...
Reflections on 2013 Supreme Court Arbitration Decisions
July 16, 2013
I have had a few days to digest the Supreme Court’s most recent opinions interpreting the Federal Arbitration Act (Oxford Health Plans LLC v. Sutter, see blog post here; and American Express Co. v. Italian Colors Restaurant, see blog posts here and here) and offer the following reflections: Sutter affirmed the broad power of the arbitrators to decide issues properly submitted to them even if the resulting decision seems implausible. Italian Colors affirmed the power of parties...
July 16, 2013
I have had a few days to digest the Supreme Court’s most recent opinions interpreting the Federal Arbitration Act (Oxford Health Plans LLC v. Sutter, see blog post here; and American Express Co. v. Italian Colors Restaurant, see blog posts here and here) and offer the following reflections: Sutter affirmed the broad power of the arbitrators to decide issues properly submitted to them even if the resulting decision seems implausible. Italian Colors affirmed the power of parties...
Supreme Court Affirms Commitment to Narrow Judicial Review of Arbitration Awards in Sutter Decision
July 15, 2013
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement,...
July 15, 2013
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement,...
SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations
July 12, 2013
In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their potential recovery. In doing so, Justice Scalia, writing for the five-member majority, gave this characteristically harsh assessment: “The FAA’s command to enforce arbitration agreements...
July 12, 2013
In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their potential recovery. In doing so, Justice Scalia, writing for the five-member majority, gave this characteristically harsh assessment: “The FAA’s command to enforce arbitration agreements...
Ninth Circuit Retreats from Complete Destruction of Broughton-Cruz Rule
July 2, 2013
In AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 1745 (2011) (Concepcion), the Supreme Court struck down the “Discover Bank rule,” California’s judicially crafted prohibition of class action waivers in arbitration agreements. See Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005).Concepcion also brought into question the validity of California’s “Broughton-Cruz rule,” another judicially crafted doctrine allowing plaintiffs...
July 2, 2013
In AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 1745 (2011) (Concepcion), the Supreme Court struck down the “Discover Bank rule,” California’s judicially crafted prohibition of class action waivers in arbitration agreements. See Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005).Concepcion also brought into question the validity of California’s “Broughton-Cruz rule,” another judicially crafted doctrine allowing plaintiffs...
