The National Law Review has published this article by James J. Hartnett and Rachel A. Osdoba addressing the interplay between arbitration provisions in construction constracts and a contractor’s mechanics lien rights.

Michael Wolgin of Carlton Fields has posted this article in JD Supra regarding the recent decision in Cipolla v. Team Enterprises, LLC, No. 19-15964 (9th Cir. June 24, 2020). As Mr. Wolgin begins: “The delegation clause in the parties’ arbitration agreement provided that any ‘questions regarding the validity or enforcement of these Dispute Policies shall be delegated and submitted to the arbitrator, including whether the scope of the claim or dispute is subject to arbitration, and whether these Dispute Policies are enforceable as a matter of law.’ The district court, however, ignored the clause and considered the validity and enforceability of the arbitration agreement by analyzing the unconscionability of portions of the agreement other than the delegation clause. That, the Ninth Circuit explained, was error.”

In Williams v. Medley Opportunity Fund II, LP, the Third Circuit affirmed the denial of a motion to compel arbitration. The contract provided that tribal law would apply to the dispute. The court determined the choice of law provision unlawfully purported to obviate statutory provisions governing the payday loans in question. Because, in the court’s view, the choice of law provisions were “integral to the entire arbitration agreement,” they could not be severed. Therefore, the court determined that the entire arbitration agreement was unenforceable.

In Essam Arafa v. Health Express Corporation (A-6-19) (083174) and Gloria Colon v. Strategic Delivery Solutions, LLC (A-7-19) (083154), the New Jersey Supreme Court posed the question as follows:

“These appeals involve arbitration agreements in contracts for employment that,
plaintiffs argue, fall within the ‘exemption clause’ of the Federal Arbitration Act (FAA),
9 U.S.C. § 1 (section 1). The question posed in both cases is whether the disputed
arbitration agreements would be enforceable under the New Jersey Arbitration Act
(NJAA), N.J.S.A. 2A:23B-1 to -36, if they are exempt from the FAA.”

Answering the question in the affirmative, the court relied on a reformation provision in the contract to make the New Jersey Arbitration Act applicable even though the contractually mandated Federal Arbitration Act did not cover the circumstances at issue.

Gavin W. Skok and Kristen W. Broz have this article in CPO Magazine, which begins: “Consumer companies have increasingly been adding arbitration requirements and class action waiver clauses to their consumer terms and conditions.  The Supreme Court has been supportive of those clauses, but California lawmakers and courts have not. “

Emile Hallez writes in InvestmentNews about changes, or lack thereof, made by investment companies notwithstanding a favorable Ninth Circuit ruling last year permitting arbitration.

A New Jersey appellate court found no contractual ambiguity in a provision stating “that ‘EITHER YOU OR WE MAY CHOOSE’ arbitration and if arbitration is elected, any dispute ‘shall’ be subject to binding arbitration.”

In NCHF Ams II Houston, LLC v. Kaplan, a California Appellate Court vacated an arbitration award. This was the second vacatur. Vacatur #1 occurred when the court determined that the arbitrator improperly awarded punitive damages. This time around, the court determined it was error for the arbitrator to reconsider liability issues, since the only problem regarding the first award was with respect to damages.

Tony W. Torain, II, in this article published in National Law Review, discusses the ways in which “a sophisticated plaintiffs’ bar has found a way to combat the proliferation of mandatory arbitration agreements,” by bringing a multitude of individual arbitration claims. He argues that “[i]n negotiating merger transactions, prospective buyers should be aware of the potential costs that arise from these agreements and should conduct due diligence appropriately.”

City News Services has this article in Patch.com discussing the presence or absence of an agreement to arbitrate claims with a West Hollywood, California dog walking service.