Buckley LLP has published this article on Lexology, discussing the Eleventh Circuit’s recent decision in Hearn v. Comcast Cable Communications, LLC. As the article describes, the court held that an arbitration provision’s language encompassed a claim where “[t]he plaintiff terminated the defendant’s services in August 2017, but later called the defendant in 2019 to inquire about pricing and services.”

Adam Forman and Kyle Winnick have this article in The National Law Review, discussing the National Labor Relations Board’s recent decision in Dish Network, LLC, 370 NLRB No. 97 (2021).

Contracting parties who wish to provide both for arbitration and for the recovery of attorneys’ fees by the prevailing party should be careful before adopting template contract language. In Nelson v. Ryks, recently decided by the Minnesota Appellate Court, purchasers of real property who prevailed in arbitration against the sellers, were unable to convince the Appellate Court that they should retain the attorneys’ fees awarded by the arbitrator.

Even though the award had been confirmed by the lower court, the Appellate Court reversed on this issue, based upon the language contained in the parties’ agreement: “the prevailing Party of any action at law or in equity brought to enforce or interpret this Agreement will be entitled to reasonable attorney[] fees and costs.”

According to the Appellate Court, “[t]he use of these terms indicates that the parties intended to authorize attorney fees for court proceedings but not for arbitration.” Similarly, the Court noted that the arbitration section of the parties’ agreement “specifically addresses the costs of arbitration—'[b]oth Parties will share the costs of arbitration equally.’ But it is silent about attorney fees.” For the Court, “[t]he omission of any reference to attorney fees in the arbitration section of the purchase agreement further indicates that attorney fees are not authorized for arbitration.” Thus, “[t]he arbitrator exceeded his authority by awarding buyers attorney fees for the arbitration and the district court erred in upholding this portion of the arbitrator’s award.”

Transactional lawyers involved in negotiating merger and acquisition agreements may find helpful the insights provided by Mark Foley of von Briesen & Roper, S.C., in this article, found in The National Law Review. Attorney Foley suggests the particular analysis and questions that drafters should undertake before committing to a particular arbitration provision.

I have known Judge Robert Holzberg for many years, having appeared before him when he sat on the Connecticut Superior Court, and for the past number of years witnessing the substantial impact he has had on the Connecticut mediation community. He shares in this article, available at JD Supra, insightful observations based on his extensive experience.

In O’Neal Constructors, LLC v. DT America, LLC, the Eleventh Circuit was confronted with a losing party’s attempt to vacate a $650,000 attorney’s fee award. The party contended it satisfied the statutory deadline for service by virtue of email delivery.

As it argued, Federal Rule of Civil Procedure allows service “by other electronic means that the person consented to in writing.” Consent, according to the movant, was found in American Arbitration Association Construction Rule 44, entititled “Service of Notice,” which provided as follows:

(a) Any papers, notices, or process necessary or proper for the initiation or continuation of an arbitration under these rules; for any court action in connection therewith; or for the entry of judgment on any award made under these[] rules may be served on a party by mail addressed to the party or its representative at the last known address or by personal service, in or outside the state where the arbitration is to be held, provided that reasonable opportunity to be heard with regard thereto has been granted to the party.

(b) The AAA, the arbitrator and the parties may also use overnight delivery, electronic fax transmission (fax), or electronic mail (email) to give the notices required by these rules. Where all parties and the arbitrator agree, notices may be transmitted by other methods of communication.

Affirming the lower court, the Eleventh Circuit, however, held this language did not authorize the email service of the motion to vacate. As the Court explained, “[s]ubsection (a) of the Rule provides for service by mail or personal service for the paper, notices, or process it covers. It does not provide for service by email. Subsection (b) does provide for service by email, but only for service of ‘the notices required by these rules,’ meaning the AAA Construction Rules. Notice of a motion requesting a court to vacate an arbitration award is nowhere required or provided for in the AAA Construction Rules.”

Thus, as the Eleventh Circuit concluded, “Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure does provide for service by email, but only with express written consent, of which there is none in this case. The district court was correct to hold that DRT did not serve in a proper and timely way notice of its motion to vacate and, as a result, that motion was due to be denied and the arbitration award confirmed.”

This article by Frank Silvestri of Verrill adds to the interest surrounding the U.S. Supreme Court’s grant of certiorari in Servotronics, Inc. v. Rolls-Royce PLC, by positing that Justice Alito’s failure to participate in the cert decision may signal his future recusal on the merits, giving rise to the prospect that the Court will split 4-4 and leave undecided “the question of whether a foreign private arbitration panel is a ‘foreign or international tribunal’ for purposes of 28 U.S.C. § 1782.”

This Lexology article by Todd D. Wozniak, Lindsey R. Camp, Chelsea Ashbrook McCarthy and Megan C. Eckel of Holland & Knight discusses recent decisions addressing the enforceability of arbitration provisions in ERISA plans, concluding that “[w]ithout clear direction from the Supreme Court or legislative action, district courts and circuit courts of appeal will continue to create uncertainty around the enforceability of class action waivers and/or arbitration provisions in plan and other employment-related documents in ERISA-based litigation.”

Matthew Kirtland, Katie Connolly, Esha Kamboj of Norton Rose Fulbright have this article in Lexology, discussing a California District Court’s decision in Monster Energy Co v City Beverages, 5:17-CV-00295, 2021 WL 650275 (CD, Cal, 17 Feb 2021), in which the court held that JAMS’ submissions of amicus briefs in litigation challenging the impartiality of one of its arbitrators did not preclude its oversight of the underlying arbitration in subsequent proceedings.

The California Court of Appeals decision in Bilodeau v. Modern Mobile Homes, Inc. provides a cautionary tale to contract drafters. A prevailing party in an arbitration sought to recover attorneys’ fees incurred in connection with post-award proceedings that unsuccessfully sought to vacate the arbitration award. As the court noted, the arbitration provision contained in the parties’ purchase agreement “did not contain an attorney fee clause.” However, the promissory note used to effect the purchase did contain such a provision: “If any action is instituted on this Note, I/we promise to pay such sums as the Court may fix as attorney’s fees.”

Notwithstanding the attorneys’ fees language in the promissory note, the court held that the arbitration agreement in the purchase agreement controlled and its failure to include an attorneys’ fee provision precluded their award by the court.