In this article, published in Lexology, Kim Gershen and Megan Burns of Troutman Pepper, discuss the decision in Frank Gilbert v. I.C. System, Inc., where the court found that a conclusory declaration regarding the plaintiff’s ostensible acceptance of arbitration terms, when he “was provided with the Terms and Conditions when he began his Sprint account” and agreed to them “through his use and payment of the account services,” was insifficient to enable the court to conduct its requisite “fact-intensive” inquiry. The authors caution counsel about “the importance of a factually developed and nonconclusory corporate declaration in supporting a motion to compel arbitration.”

In Mainthia Technologies Inc. v. Recruiting Force, LLC d/b/a Recruit Veterans, the Texas Court of Appeals affirmed a lower court’s denial of a motion to compel arbitration, for the simple reason “that a joint-venture agreement between [the parties] ‘does not include an agreement to arbitrate.'”

The agreement at issue provided for an attempt to resolve disputes through direct discussions between the parties, to be followed by mediation before the American Arbitration Association “as a ‘condition precedent to arbitration as herein provided.'”

That was it. Nowhere else did the agreement reference arbitration. While the party seeking to compel argued “that the intent to submit to arbitration is implicit in [the agreement’s] use of the word ‘herein,'” the court disagreed, holding that to find an obligation to arbitrate would require the court to rewrite the parties’ agreement or to add to its language.

Although the court’s opinion offers no insight into the origins of the ambiguously incomplete language of the agreement, the litigation surrounding the issue of arbitrability serves as a cautionary tale to attorneys that careless draftsmanship can complicate matters for their clients.

As Gary Qualls of K&L Gates explains in this article, available at JD Supra, the recently enacted federal No Surprises Act “seeks to protect patients from so-called “surprise medical bills” in certain emergency and nonemergency settings for out-of-network patients.” The Act “establishes an arbitration process for disputes between providers and payors,” which Mr. Smalls outlines in his review of the Act, including its adoption of “baseball arbitration.”

Dave Reif discusses in this recent edition of his blog two recent federal cases addressing the addition of arbitration clauses to existing employment relationships, in which the courts each held the arbitration provision to be enforceable.

A New York court’s recent decision in WPP Group USA, Inc. v. RB/TDM Investors, LLC et al provides a point of reference for this JD Supra article by Ann Terrell Dorsett, Stephen Foresta, Aaron Jaroff and Lee Royster of McGuire Woods, in which they discuss the importance to purchasers of representations and warranties insurance policy of considering the pros and cons of insurance in negotiating the terms of the policy. In this particular matter, the policy provided the insured with the option of proceeding in court or arbitration, thereby enabling the policyholder to make the determination at the time the claim arose rather than committing to a particular path when the policy was put into effect.

Alison Frankel of Reuters has this article, discussing the Second Circuit’s decision in Milberg, LLP v. Drawrah Limited, et al. As Ms. Frankel states, “[t]he 2nd U.S. Circuit Court of Appeals made clear in a summary order Tuesday that if you’re suing a foreign defendant to vacate an arbitration award, you still have to pay heed to the Federal Arbitration Act’s three-month deadline for challenging the outcome.”

Allison Snyder of Porter Hedges LP explains the importance of clearly definited parameters of an arbitrator’s authority in her discussion of the Fifth Circuit’s decision in Soaring Wind Energy LLC (SWE) v. CATIS USA Inc., et al., denying an effort to vacate an arbitration panel’s award for exceeding its powers. The panel awarded almost $63 million in lost profits even though the arbitration agreement provided as follows:

17.10 No Consequential or Punitive Damages.  IN NO EVENT SHALL ANY MEMBER OR ANY OF ITS RESPECTIVE REPRESENTATIVES OR AFFILIATES BE LIABLE TO THE COMPANY OR TO ANY OTHER MEMBER OR ITS REPRESENTATIVES OR AFFILIATES FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES.

A Florida District Court has denied an application for discovery in aid of a foreign arbitration made under 28 U.S.C. Section 1782, finding that the presiding tribunal–the International Chamber of Commerce–is not a foreign or international tribunal that conforms to the statute. Affirming the decision of a Magistrate Judge, the court held in In re Application of: Juan Maria Rendon and Roberto Maurice Ventura Crispino, “the pending ICC arbitration is not a foreign or international tribunal because its decision would not be subject to judicial review.”

“Consumers who sued Amazon must now arbitrate claims that the company’s Alexa device, a digital assistant, illegally recorded their voices and stored their voiceprints in violation of the Illinois Biometric Information Privacy Act (BIPA).” So begins this article by Christina Tabacco in Law Street Media, discussing the decision by an Illinois District Court in Wilcosky v. Amazon.Com, Inc.

The court’s order compelling arbitration includes one plaintiff who was an Alexa bystander, alleging that “he had not and never had been a purchaser of any Alexa device, nor had he ever set up an Alexa account or downloaded the Alexa application,” but that “nevertheless…his voice has been recorded without his consent by Alexa devices in Illinois numerous times.” The court nonetheless held that, by purchasing Amazon products, the plaintiff agreed to the company’s Conditions of Use, which contain an arbitration agreement and class action waiver providing that “[a]ny dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court … .” For the court, this was enough to send the claim to arbitration, for an arbitrator to decide whether the scope of the arbitration provision encompassed the BIPA claims.

This article by Abraham Gafni, published in The Legal Intelligencer, adds to the discussion of the Third Circuit’s decision in National Mutual Casualty Company Insurance Group (Penn National) v. New England Reinsurance, 20-1635 and, No. 20-1872 (3^rd Cir. Dec. 24, 2020), holding that a petition to confirm an arbitration award serves to make public the award when it is made part of the judicial record. Mr. Gafni suggests that, to the extent public disclosure is of concern, a party should consider the possibility of settlement before seeking confirmation.