Brendan Gooley of Carlton Fields has this article in JD Supra, discussing the Michigan federal court’s adoption of a magistrate judge’s recommendation in Anagonye v. Mass Mutual Insurance Co., in which a financial advisor, having received a notice of a right to sue within 90 days by the EEOC, failed to commence arbitration within that period. The court stayed the action based on the existence of an arbitration agreement between the advisor and her former employer, and the arbitration panel subsequently determined that the demand was time-barred since it was not filed within 90 days of the EEOC’s notice.

The magistrate judge recommended confirmation of the arbitration award, explaining that “the FAA does not provide for judicial review of an arbitrator’s legal conclusions,” and the district court adopted the recommendation.

The legal issue of whether an EEOC’s requirement that suit be brought within 90 days serves as a time constraint on the commencement of arbitration may be interesting and debatable. However, the takeaway from Anagonye is that, legally correct or not, an arbitrator’s determination of that issue will be upheld by a court.

Jake Martin of AdvisorHub has this article, discussing a motion by UBS to vacate a substantial FINRA arbitration award entered against it by a divided panel. According to the article, one of the arbitrators (in the majority) failed to disclose his participation as plaintiff in a number of “previous lawsuits he filed against large corporations,” which UBS contends signaled potential bias against it.

One obvious question to be developed in the course of the vacatur proceedings concerns the due diligence efforts, if any, undertaken by UBS with respect to the arbitrators and whether they would have revealed the arbitrator’s litigation history.

JD Supra has published this article by Beatrice Nunez-Bellamy of Davis Wright Tremaine, discussing the California Court of Appeal decision in Bannister v. Marinidence OPCO, LLC. In Bannister, the appeals court affirmed the lower court’s determination that an electronically signed arbitration agreement was not enforceable because the employer did not definitively prove that the employee had signed the agreement. Specifically, “although Marinidence presented evidence that knowledge of Ms. Bannister’s social security number, employee identification information, and pin code were required to sign the agreement, Ms. Bannister persuaded the court that the employer also had that information and thus could have signed the document for her.”

The takeway, according to the article, is that “[t]o create an enforceable agreement when using e-signatures, the employee’s signature should also be verifiable, such that only the employee for whom the document applies could have signed the agreement.”

Alex Silverman of Carlton Fields has this article, available in JD Supra, discussing the Southern District of New York’s decision in Credit Suisse AG v. Graham, where the court rejected a petition to enjoin an arbitration on grounds that “the proceeding was an impermissible ‘collateral attack’ on a prior, related arbitration in which [the respondent’s] claims against different parties were dismissed.” As the article explains, the case presented a gateway issue with regard to who should decide–a court or the arbitrator–whether the second proceeding was an impermissible attack on the first arbitration, and “the court ruled that the preclusive effect of [respondent’s] first arbitration, if any, should be decided by the arbitrator in the second arbitration.”

In Pirzada v. AAA Texas, LLC, No. H-21-0664 (June 15, 2021), the U.S. District Court for the Southern District of Texas granted a company’s motion to compel arbitration of claims brought by an employee, rejecting claims that discovery restrictions contained in the arbitration agreement were unconscionable. Relying on precedent, the court held that the employee had failed to meet his “burden of showing that the Arbitration Agreement’s limits on discovery will deny him a fair opportunity to present his claims.”

As with other matters where a company may seek to enforce contractual rights, arbitration agreements require a party to be able to prove the existence of the agreement.

In CSAA Affinity Insurance Co. v. AmeriGas Propane LP, the U.S. District Court in Arizona was asked to compel arbitration of an insurance claim for water loss and damage. The insurer was unable to produce a fully executed agreement containing the arbitration provision its regional director testified was included in the agreement. Instead, the director testified that the company’s files contained only the signature page of the agreement. The court rejected this evidence as insufficient, holding that “Defendants have not met their burden of establishing that the Insureds entered into an agreement containing an arbitration clause. Although Defendants assert that the terms of service sent to the Insureds, and which [the movant’s predecessor company] accepted, contained an arbitration clause per their usual practice, they have not established that the specific agreement accepted by the Insureds contained an arbitration clause.”

In Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., the Second Circuit recently reviewed in detail the circumstances in which an arbitration provision indirectly referenced in a company’s promotional materials will be enforced. Soliman involves a putative class action alleging a violation of the Telephone Consumer Protection Act predicated on allegations that the defendant failed to comply with a consumer’s request to unsubscribe from a promotion.

The defendant moved to compel arbitration based upon terms and conditions found in a website to which the consumer was ostensibly referred by a hard copy, in store announcement of the promotion. The Second Circuit affirmed the lower court’s denial of the motion to compel for the reason that the arbitration provision was not “reasonably conspicuous” as required by applicable precedent. The decision, reviewing and distinguishing various precedents, provides an informative tutorial for companies seeking to provide for arbitration in their promotional programs and attorneys representing clients regarding the enforceability of arbitration provisions.

Dave Reif’s ADR Highlights discusses the Western District of Washington’s decision in BioOrigyn, LLC. v. Fairhaven Health, Inc., 2021 U.S. Dist. LEXIS 104803 (W.D. Wash. June 3, 2021), in which the court rejected a party’s attempt “to avoid arbitration by ‘dropping’ certain … contract claims.” As the article explains, the court held that it would “not ignore the express language of the complaint simply because Plaintiffs request to drop the claim here.  Whether Plaintiffs continue to pursue this claim or not, the claim is subject to the 2015 Likeness Agreement’s arbitration provision and must be sent to arbitration.’”

Taft Stettinius & Hollister has published this article in Mondaq, discussing the Ohio Supreme Court’s recent decision in BST Ohio Corp. v. Wolgang, in which the court held that an Ohio statute facially providing three months to seek vacatur of an award does not necessarily provide that much time. Instead, as the article explains, “if a party moves to confirm an arbitration award, the opposing party must move to vacate the award before the court’s hearing to confirm the award – even if the hearing is less than three months after the arbitration award was issued.”

This article by Laurence Doering and Eileen Lobig, available on JD Supra, discusses international arbitration cases addressing arbitrators’ ability to conduct their own factual investigations outside the hearing. In particular, the article notes a German court’s recent decision affirming an award over claims that the arbitrators improperly conducted online research.

This decision will surprise United States practitioners and arbitrators, where history and culture emphasize the importance of receiving evidence only within the confines of a hearing where all parties have the opportunity to participate and respond.