Lexology has published this article by Seyfarth Shaw attorneys Lennon B. Haas, Kyle Petersen and Kevin M. Young, discussing the recent decision in Hamrick v. Partsfleet, LLC, in which, as the article notes, the Eleventh Circuit made clear “that delivering goods that originate out of state is not enough to trigger the [Federal Arbitration Act] exemption” to arbitration of claims involving workers engaged in interstate commerce. The article notes that the Eleventh Circuit decision conflicts with cases emanating from the First and Ninth Circuits, which “inches this important issue closer to the type of split that might command attention from the Supreme Court.”

Alex Silverman of Carlton Fields has this article in JD Supra, discussing a Texas federal court’s decision in Pirzada v. AAA Texas, LLC, in which the court, while granting a motion to compel arbitration, stayed rather than dismiss the lawsuit in order “to preserve the plaintiff’s claims in the event they are not resolved by arbitration.” Because “‘ [A] demand for arbitration does not toll the statute of limitations,'” the district court’s opinion noted that “courts have sometimes found that staying an action serves the useful purpose of ‘preserv [ing] a forum for redress in the event that arbitration fails to resolve the claims.'”

Those who have been following (or are otherwise interested) in the movement among some to institute mandatory shareholder arbitration as an alternative to shareholder class actions may enjoy this article by Alison Frankel in Reuters, discussing the New Jersey District Court’s recent decision in The Doris Behr 2012 Irrevocable Trust v. Johnson and Johnson. In addition to discussing the specific procedural infirmities of the case that led the court to dismiss it, the article discusses the wider context of the argument for what some (but not all) view as a saner way to address shareholder disputes.

In Wesichadle v. Vo, the California Court of Appeal reversed the trial court’s refusal to compel arbitration of a malpractice claim brought against a law firm by its former client. Explaining that “much of the trial court’s written order focused on the procedural unconscionability of the retainer agreement,” the Court of Appeal held that the lower court’s findings were problematic in that “there was virtually no evidence to support them,” a fatal flaw in that the client “had the burden to proved unconscionability,” yet “submitted no evidence regarding the circumstances in which she entered into the retainer agreement.”

Greg Mersol of Baker & Hostetler has this article, available at Lexology, discussing the decision by an Ohio federal court in Reulbach v. Life Time Fitness, Inc., in which the court, enforcing a class action waiver, compelled arbitration of employment claims. As the article explains, “[t]he Reulbach decision reflects that some plaintiffs will continue to make challenges to arbitration agreements with class waivers but that courts are now far less accepting of them in the wake of [the United States Supreme Court’s decision three years ago in Epic Systems Corp. v. Lewis]. The takeaway for the article is that “[c]ourts will uphold electronically signed arbitration agreements even if the plaintiff does not remember reading them.”

The Missouri Court of Appeals decision in Harris v. Volt Management Corp. is discussed in this Lexology article by the Baker Sterchi law firm. As the article explains, the court “reaffirmed that under Missouri law, an arbitration agreement that vests in one party the unfettered right to modify the arbitration program lacks consideration and will not be enforced.” Summarizing the decision, the article notes that “[l]anguage in the arbitration agreement, which reserved for [the employer] the unfettered right to unilaterally modify the terms of the arbitration program, was not a promise at all. As a result, the circuit court would not compel the employee to arbitrate her claims, instead her lawsuit to proceed.”

Stephen J. Steinlight, Christoper Bascom, Thomas Jonathan Turner and Megan Burns of Troutman Pepper have this article in Lexology, discussing the Second Circuit’s decision in Jefferies LLC v. Gegenheimer, in which the court affirmed the ongoing theoretical vitality of the “manifest disregard of the law” ground for vacating an arbitration award, but reminding litigants of the high bar necessary to satisfy the standard.

Joseph Lang Jr., of Carlton Fields, has this article in JD Supra, discussing the Eighth Circuit’s recent decision in Daredevil, Inc. v. ZTE Corporation, in which the court “determined that claims brought by Daredevil Inc. in the Eastern District of Missouri were precluded under Florida res judicata principles by an earlier arbitration in Jacksonville, Florida.” As the article notes, even though the subsequent judicial action “included a claim — tortious interference — that was not at issue in the arbitration,” the Eighth Circuit “agreed with the district court’s assessment that ‘[t]his is not sufficient to distinguish these causes of action,’ as the underlying contracts, facts, and named individuals were the same in both suits, and both suits relied on the same evidence from the same witnesses.”

By a 2-1 vote, a sharply divided panel of the Sixth Circuit reversed a trial court’s decision refusing to compel arbitration, based upon an American Arbitration Association administrative determination that the parties failed to satisfy the AAA’s Healthcare Due Process Protocol and Healthcare Statement. Under the Protocol and Statement, healthcare providers and their patients must sign an arbitration agreement after a dispute arises in certain cases. When the claimant refused to sign the required agreement, the AAA determined the case was not arbitrable. The district court agreed.

The appellate panel, in Ciccio v. SmileDirectClub, LLC, reversed, in what the majority characterized as a “narrow” decision, that “say[s]nothing about whether the underlying dispute is arbitrable, only that the Agreement requires that an arbitrator make that determination.”

The dissenting judge rejected the view that the case presented a typical gateway question that required the arbitrator’s determination. As he framed the issue, “the parties were bound by the rules of the American Arbitration Association (“AAA”), which were incorporated into the agreement and governed when the parties would be required to submit their disputes to arbitration. The question before us is whether those AAA rules may be ignored or will be considered essential terms of the contract.”

At this juncture, the question of arbitrability presumably will be decided by an arbitrator, who may determine that the AAA Protocols and Statement should be enforced. However, if the arbitrator were to disagree with AAA and determine the case to be arbitrable, it will lead to the question of whether a tribunal such as AAA can be effectively compelled to administer disputes that it determines are violative of its protocols.

In Reulbach v. Life Time Fitness, Inc., a federal court in Ohio granted the defendant’s motion to compel arbitration of claims brought by a former employee. The company introduced the arbitration requirement after plaintiff commenced his employment. Among other arguments, the plaintiff contended that the arbitration provision would not apply to allegedly unlawful events that occurred prior to the implementation of the arbitration agreement. As the court explained, “[p]laintiff argues that because ‘Covered Claims’ are only those claims ‘that arise between team members and Life Time,’ only claims ‘that accrued’ after the Agreement was in effect would be subject to arbitration.”

Rejecting this argument, the court held that it was appropriate to encompass earlier occurring events within the scope of the arbitration provision as long as suit had not already been filed:

“The Agreement contains no language that places a distinction between claims that are based upon events that occurred before and after the adoption of the Agreement. Moreover, the Agreement contains a provision that claims asserted in actions that were already ‘commenced’ before the Agreement was entered into would not be subject to arbitration. A reading of the Agreement as a whole supports a finding that this arbitration policy applies to all employment related disputes, including those claims based upon events occurring prior to the execution of the Agreement.”

Accordingly, the court determined all of plaintiff’s claims were arbitrable.