Contract Touchstones

I am exercising a bit of editorial discretion to share this article I was invited to write by the National Golf Course Owners Association: Anticipating Conflict: How Golf Course Owners Should Contractually Prepare My legal career has included a variety of roles. I represented clients in litigating commercial disputes for more than two decades. IContinue reading “Contract Touchstones”

Delaware Court Denies Losing Party A Second Bite At the Arbitration Apple

In Gulf LNG Energy, LLC v. ENI USA Gas Marketing LLC,, the Delaware Supreme Court framed the issues before it as follows: “first, whether the Court of Chancery had jurisdiction to enjoin a second arbitration that collaterally attacks a prior arbitration award; and second, whether the second arbitration in fact collaterally attacked the prior arbitrationContinue reading “Delaware Court Denies Losing Party A Second Bite At the Arbitration Apple”

Banter Between Arbitrator And Counsel Unleashes New Proceedings

A New Jersey court’s decision in Asphalt Paving Systems, Inc. v. Associated Asphalt Partners, LLC provides a cautionary tale for those seeking to inject an element of levity into what is supposed to be a formal proceeding. Plaintiff later alleged that as the arbitration ended, the arbitrator asked the parties and their counsel, “What wouldContinue reading “Banter Between Arbitrator And Counsel Unleashes New Proceedings”

Trial Necessary To Determine Whether Plaintiff Or An Identity Thief Signed Arbitration Agreement With Bank

Martinez v. Trans Union LLC presented a U.S. District Court with a logical conundrum. Plaintiff brought suit alleging that financial institutions violated the Fair Credit Reporting Act by not adequately investigating claims that a wrongdoer had appropriated his identity, using it to open accounts in his name. Defendant Credit One Bank moved to compel arbitration,Continue reading “Trial Necessary To Determine Whether Plaintiff Or An Identity Thief Signed Arbitration Agreement With Bank”

Reconciling Arbitration And Forum Selection Clauses

David Reif has the following interesting post in his November 13, 2020 “ADR Highlights”: “Fintech Fund, F.L.P. v. Horne, 2020 U.S. App. LEXIS 35418 (5th Cir.) (Nov. 10, 2020) addresses how a court may reconcile potentially dueling arbitration and forum selection clauses. Fintech licensed its biometric technology to its U.K. affiliate, CrossVerify. Horne, the defendantContinue reading “Reconciling Arbitration And Forum Selection Clauses”

Court’s Waiver Opinion Provides Guidance To Counsel

For those addressing the issue of waiver of a contractual right to arbitrate, the U.S. District Court for the Western District of Texas’s decision in Spark Connected, LLC v. Semtech Corporation is worth a read. The court’s thorough decision addresses all the major touchstones: pleadings that fail to reference arbitration, a seven month delay, theContinue reading “Court’s Waiver Opinion Provides Guidance To Counsel”

“Be Sure Your Arbitration Clause Clearly States Who Will Decide Whether a Dispute Is Arbitrable”

Shepard Davidson of Burns & Levinson LLP discusses the Massachusetts Court of Appeals decision in Boursiquot v. United Healthcare Services of Delaware, in this article, available through Lexology, which concludes with an admonition that “if in-house counsel want to have arbitration for reasons of confidentiality, it is critical to include in their arbitration clauses plainContinue reading ““Be Sure Your Arbitration Clause Clearly States Who Will Decide Whether a Dispute Is Arbitrable””

“Arbitrator Snooze … You Lose? A Reminder to Raise Specific Objections to an Arbitrator First, or Risk Forfeiting Them on Appeal”

“You represent a business owner who ends up arbitrating a dispute with a supplier.  After spending tons of time and money preparing for the 5-day evidentiary hearing, you look up to hear snoring from the arbitrator – he fell asleep for part of the proceedings!  Surely you’ll be able to get the result vacated by the circuit court onContinue reading ““Arbitrator Snooze … You Lose? A Reminder to Raise Specific Objections to an Arbitrator First, or Risk Forfeiting Them on Appeal””

Court Stays Judicial Discovery Pending Decision On Whether Parties Should Arbitrate

A U.S. District Court in Colorado determined it would be appropriate to permit the plaintiff to pursue discovery prior to the determination of defendant’s motion to dismiss the case in favor of arbitration. In The i4 Group Consulting, LLC v. Scaled Agile, Inc., No. 20-cv-01855-DDD-NRN (D.Colo.)(November 9, 2020) plaintiff acknowledged the existence of a signedContinue reading “Court Stays Judicial Discovery Pending Decision On Whether Parties Should Arbitrate”