“Parties To Construction Contracts Should Exercise Caution When Allowing An Arbitrator To Change Hats Between Mediator And Arbitrator”

Best practice guidance is that arbitrators should remain focused on their role as the “decider” of a dispute, and not cavalierly accept an invitation to facilitate mediation in the midst of the arbitration. Since mediation may provide the neutral with information that would not be admissible evidence in the arbitration, some of it ex parte,Continue reading ““Parties To Construction Contracts Should Exercise Caution When Allowing An Arbitrator To Change Hats Between Mediator And Arbitrator””

“How Consumers Are Using Mass Arbitration to Fight …Corporate Giants”

Consumer Reports has issued this article, providing an overview of the use of mass arbitration by consumer counsel in response to contractual class action prohibitions. For those who have not been following the articles and decisions in specific cases, the article provides a high level discussion of this movement which is leading some large corporationsContinue reading ““How Consumers Are Using Mass Arbitration to Fight …Corporate Giants””

“The Enforceability of Arbitration Provisions in Law Firm Engagement Agreements”

David Atkins and March Stovall of Pullman Comley have this article, discussing the New Jersey Supreme Court’s decision in Delaney v. Dickey, in which the Court, as Mr. Atkins and Ms. Stovall note, “refused to enforce an arbitration agreement in a legal mal claim filed against a prominent New Jersey law firm by a formerContinue reading ““The Enforceability of Arbitration Provisions in Law Firm Engagement Agreements””

“Missouri Court of Appeals affirms denial of motion to compel arbitration based on contract of adhesion”

John Brooks of Baker Sterchi has this article, available in Lexology, discussing the Missouri Court of Appeals decision in Rose v. Sabala, in which the court affirmed a decision denying Verizon’s motion to compel arbitration of a customer complaint. The customer alleged that a Verizon employee, under the guise of evaluating her phone for tradeContinue reading ““Missouri Court of Appeals affirms denial of motion to compel arbitration based on contract of adhesion””

If It Doesn’t Quack Like A Duck, It’s Not A Duck

In Southard v. Newcomb Oil Company, LLC, the Sixth Circuit declined an employer’s invitation to send claims against it to arbitration. Noting that, “despite it being the titular term, the [Federal Arbitration Act] does not define arbitration,” the court explained that under applicable precedent “we evaluate whether an agreement qualifies as FAA arbitration based onContinue reading “If It Doesn’t Quack Like A Duck, It’s Not A Duck”

Whistling Ipse Dixit

The United States District Court for Delaware recently provided an exceptionally thorough and clear analysis of gateway arbitrability determinations, holding in Nidec Corporation v. Seagate Technology LLC that, under the parties’ contract, the issue was one for the arbitrator, not the court. The court’s decision is summarized in this article by Oskana Wright at FoxContinue reading “Whistling Ipse Dixit”

Court Rejects Intuit’s Efforts To Move 40,000 Arbitration Claims To Small Claims Court

The California Court of Appeal last week issued its decision in Intuit Inc. v. 9,933 Individuals, affirming a lower court ruling that denied Intuit’s request for a preliminary injunction seeking to enjoin approximately 40,000 pending consumer injunctions that “[e]ven if … conducted without hearings,” would cost Intuit $128 million in in arbitration costs. Intuit arguedContinue reading “Court Rejects Intuit’s Efforts To Move 40,000 Arbitration Claims To Small Claims Court”

Failure To First Mediate Voids Arbitration Award

I missed the Texas Court of Appeals decision in Burke v. Roberson, when it issued late last year. Better late than never, as I have been clued into this significant opinion by this article in The National Law Review authored by Sydney Warren and David Pugh of Bradley Arant. As the article summarizes, the courtContinue reading “Failure To First Mediate Voids Arbitration Award”

Court Holds Arbitration Agreement That Permitted Modification By Employer To Be Unenforceable

Johnson v. Menard, Inc. involved a former employee’s lawsuit alleging discrimination. The employer unsuccessfully sought to compel arbitration, and the Missouri Court of Appeals affirmed the denial. The agreement included language providing for arbitration in accordance with American Arbitration Association rules, including the AAA provision that “[t]he arbitrator shall have the power to rule onContinue reading “Court Holds Arbitration Agreement That Permitted Modification By Employer To Be Unenforceable”

“Ninth Circuit Underscores the Need for Careful Drafting of International Arbitration Clauses”

Frederick Acomb and Ahmad Chehab have this article in The National Law Review, discussing the Ninth Circuit’s decision in Setty v. Shrinivas Sugandhalaya LLP, holding that, in an international arbitration, “a non-signatory can in fact enforce an arbitration clause under the doctrine of equitable estoppel provided the claims in the case are “intertwined” with theContinue reading ““Ninth Circuit Underscores the Need for Careful Drafting of International Arbitration Clauses””