Courts Wrestle With Materiality Of Provision Designating Arbitration Forum

David Reif has the following interesting post in his October 30, 2020 “ADR Highlights”:

“When the defendant in De Pompo v. IRINOX N.A., Inc., 2020 U.S. Dist. LEXIS 199455 (S.D. Fla.) (Oct. 27, 2020) refused to pay a share of the initial arbitration fee, the AAA closed the case and declined to administer any future employment matters involving IRINOX.  Defendant moved that the court, which had previously stayed the litigation pending arbitration, appoint an arbitrator. Plaintiff countered that the litigation should be dismissed, alleging that the defendant’s failure to pay the fee was merely “gamesmanship.”  Judge Bloom analyzes whether the choice of the AAA as a forum is integral to the parties’ agreement or “merely an ancillary logistical concern.”  Distinguishing two Eleventh Circuit precedents holding that the unavailability of a tribal forum invalidated an agreement to arbitrate, the Court severs the forum selection provision and appoints an arbitrator itself.  The case is a great source for citations from the Eleventh Circuit and the U.S. District Courts in Florida on the issue of a failed forum selection.”