Lack of Mutuality Renders Employment Arbitration Agreement Unenforceable A federal court in Oregon held that an arbitration agreement fails for lack of mutuality where it purports to require arbitration of all disputes between an employer and employee, but creates exceptions for claims typically only brought by an employer. Court Upholds Class Waiver and Orders Arbitration of Credit Card Dispute
A federal district court in Virginia held that the enforceability of a class waiver is a question of arbitrability that is presumptively decided by the court rather than the arbitrator. In deciding that question of arbitrability, the Court held that the class waiver was enforceable because the claimant had "advance[d] no tenable reason" for not enforcing the waiver. Confidentiality Provision in Arbitration Agreement Remains Enforceable Despite Finding of Fraudulent Inducement as to Entire Contract According to the Fifth Circuit Court of Appeals, a finding of fraudulent inducement in an entire contract during an arbitration proceeding does not render a severable confidentiality provision in that contract's arbitration agreement unenforceable. Court Upholds Wireless Contract Arbitration Agreement But Severs Cost-Splitting Provision A Michigan federal court enforced an arbitration agreement in a contract for wireless services; but severed the cost-splitting provision upon its determination that the provision was unconscionable because it called for the customer to pay one-half of the arbitration costs. Arbitrator's Evidentiary Rulings Did Not Deprive Party of Fundamental Fairness Confirming an arbitration award, the District of Columbia Court of Appeals held that it will not review an arbitrator's evidentiary rulings unless those rulings deprive a party of a fundamentally fair hearing.
Alabama Supreme Court: Appellate Rules Establish 42-Day Deadline for Challenging Arbitration Awards The Alabama Supreme Court has held that a party must file a motion to vacate an arbitration award with the circuit court to preserve its right to further appeal, and that the time limit for challenging an award was extended to 42 days from the date of the award by the Alabama Rules of Appellate Procedure. California Court Attempts to Clarify Narrow Circumstances When Motions to Compel Should Be Denied to Avoid Danger of Inconsistent Rulings Under California law, courts may deny a motion to compel arbitration when there is a danger of conflicting rulings in court and arbitration, and that danger is introduced by the presence of a third party not subject to the arbitration agreement, according to a California Court of Appeal. Arbitration Agreement Using Permissive Language Does Not Create Duty to Arbitrate In affirming a lower court order denying a motion to compel arbitration, a Texas appellate court construed an arbitration agreement in a reinsurance contract as permissive rather than mandatory because the agreement used permissive language and expressly provided that either party could accept or reject the other party's request to arbitrate. Party Cannot Re-Litigate Issues Previously Resolved Through Arbitration A New Jersey appellate court affirmed the dismissal of an insurance company's declaratory judgment action, holding that the insurance company was attempting to re-litigate an issue that had already been resolved through arbitration. Mortgage Arbitration Agreement Cannot Foreclose on Consumer's Right to Statutory Damages A Kentucky appellate court upheld a trial court's determination that an agreement to arbitrate contained in a mortgage contract was unconscionable because it limited the consumer's right to recover statutory damages. Court Upholds Employment Arbitration Award Challenged on Grounds of Arbitrator Misconduct and Erroneous Factual Findings Reversing a trial court's decision to vacate an arbitration award, the Connecticut Supreme Court held that it is within an arbitrator's broad authority to refuse to hear certain evidence, and courts may not review an arbitrator's decision for factual errors.
LEGISLATIONCA A 567 AUTHOR: Saldana [D] TITLE: Common Interest Development Bureau DISPOSITION: To Governor LOCATION: To enrollment Commentary: Legislature intends to create an ombudsperson position to provide a neutral, nonjudicial forum for resolution of common interest development disputes. CA A 1945 AUTHOR: De La Torre [D] TITLE: Health Care: Application: Postclaims Underwriting DISPOSITION: Pending LOCATION: Senate Second Reading File Commentary: This bill was amended on August 18, 2008 to establish in the Department of Managed Health Care and the Department of Insurance an independent review process for the review of health plans' and health insurers' decisions to cancel or rescind health care service plan contracts and health insurance policies. This bill would require every health care service plan to prominently display in every plan member handbook or relevant informational brochure, in every plan contract, on enrollee evidence of coverage forms, on copies of plan procedures for resolving grievances, information concerning the right of an enrollee or subscriber to an automatic independent review in cases where the health care service plan has decided to cancel or rescind the enrollee's or subscriber's health care service plan contract, pursuant to Section 1389.8. The independent review organizations shall be not for profit and shall be independent of any health care service plan doing business in this state. CA A 2220 AUTHOR: Jones [D] TITLE: Emergency Room Physician Contracts DISPOSITION: Pending LOCATION: Senate Judiciary Committee Commentary: This bill would state, "It is the intent of the Legislature to advance the efficient and equitable resolution of billing disputes between noncontracting hospitals and health care service plans." Amended on 4/22/08 to instead require that impediments in reaching acceptable contract terms for contracts between specified hospital based physicians or hospital based physician groups and health care service plans or their contracting payers be resolved through binding arbitration. An 8/12/08 amendment changed the mandatory arbitration requirement to a mandatory mediation requirement. CA A 2323 AUTHOR: Huff [R] TITLE: Escrow Agents DISPOSITION: Enacted LOCATION: Chaptered Commentary: Expands the Escrow Law relating to criminal background checks, to include federal summary criminal history information from the Federal Bureau of Investigation and other related information. Requires arbitration of any dispute arising from the denial of a certificate under the law. CA A 2484 AUTHOR: Caballero [D] TITLE: Local Government: Special Districts DISPOSITION: Enacted LOCATION: Chaptered Commentary: Amends the Cortese Knox Hertzberg Local Government Reorganization Act. Removed mediation and arbitration references in regards to property tax issues. CA A 2641 AUTHOR: Cook [R] TITLE: Military Service: Protection: Ombudsman DISPOSITION: To Governor LOCATION: Enrolled Commentary: Allows for the appointment of mediators to help resolve USERRA complaints by returning servicemen and women. CA A 2846 AUTHOR: Feuer [D] TITLE: Common Interest Developments: Assessments DISPOSITION: To Governor LOCATION: Enrolled Commentary: "Provides that, if a dispute exists between the owner of a separate interest and the homeowners' association regarding assessments imposed by the association, and the amount in dispute does not exceed the jurisdictional limits of the small claims court, the owner of the separate interest may either request alternative dispute resolution or pay the disputed amount under protest and commence and action in small claims court." The bill was amended on 8/5/08 to instead state, "An owner may dispute an assessment debt by submitting a written request for dispute resolution to the association … In addition, an association may not initiate a foreclosure without participating in alternative dispute resolution with a neutral third party … if so requested by the owner. Binding arbitration shall not be available if the association intends to initiate a judicial foreclosure." CA S 981 AUTHOR: Perata [D] TITLE: Health Care Coverage: Noncontracting Physician Claims DISPOSITION: Pending LOCATION: Assembly Third Reading File Commentary: This bill would prohibit "balance billing" by non contracting physicians against patients. It also establishes an independent dispute resolution process by which non contracting physicians could seek review of such billing disputes over non contracted services. The bill requires that an independent dispute resolution organization administer the process, and that the organization would be "contracted with or appointed by the department." CA S 1432 AUTHOR: Margett [R] TITLE: Contractors DISPOSITION: Enacted LOCATION: Chaptered Commentary: Amends the code regarding contractors. "SEC. 4. Section 116.220 of the Code of Civil Procedure is amended to read: 116.220. (a) The small claims court has jurisdiction in the following actions: 4) To confirm, correct, or vacate a fee arbitration award not exceeding five thousand dollars ($5,000) between an attorney and client that is binding or has become binding, or to conduct a hearing de novo between an attorney and client after nonbinding arbitration of a fee dispute involving no more than five thousand dollars ($5,000) in controversy, pursuant to Article 13 (commencing with Section 6200) of Chapter 4 of Division 3 of the Business and Professions Code." CA S 27 a AUTHOR: Aanestad [R] TITLE: Major Risk Medical Insurance Program DISPOSITION: Pending LOCATION: Senate Health Committee Commentary: This bill alters existing law establishes the California Major Risk Medical Insurance Program (MRMIP) that is administered by the Managed Risk Medical Insurance Board (MRMIB) to provide major risk medical coverage to residents. This bill would require that a person either be rejected for coverage by at least 3 different health plans or have a qualified medically uninsurable condition, also revise the definition of the term "resident" for purposes of MRMIP eligibility, also would require MRMIB to offer at least 4 different options for major risk medical coverage, and would state the intent of the Legislature to enact legislation allowing a related tax deduction. As it relates to ADR, a grievance may be submitted to the department for review and resolution prior to any arbitration or patient may also request voluntary mediation with the plan prior to exercising the right to submit a grievance to the department. NY S 8143 SPONSOR: Farley [R] TITLE: Mortgages and Foreclosure DISPOSITION: Enacted LOCATION: Chaptered Commentary: Amends an act regarding home loans. Amendments relating to ADR include: "Limitations and prohibited practices for high cost home loans AND NON CONVENTIONAL HOME LOANS. A high cost HIGH COST home loan LOANS AND NON CONVENTIONAL HOME LOANS shall be subject to the following limitations: "(g) No oppressive mandatory arbitration clauses. No high cost home loan OR NON CONVENTIONAL HOME LOAN may be subject to a mandatory arbitration clause that is oppressive, unfair, unconscionable, or substantially in derogation of the rights of consumers"; and "(C) ANY PROVISION OF A CONSULTING CONTRACT THAT ATTEMPTS OR PURPORTS TO LIMIT THE LIABILITY OF THE DISTRESSED PROPERTY CONSULTANT UNDER THIS SECTION SHALL BE NULL AND VOID. INCLUSION OF SUCH PROVISION SHALL AT THE OPTION OF THE HOMEOWNER RENDER THE CONSULTING CONTRACT VOID. ANY PROVISION IN A CONTRACT WHICH ATTEMPTS OR PURPORTS TO REQUIRE ARBITRATION OF ANY DISPUTE ARISING UNDER THIS SECTION SHALL BE VOID AT THE OPTION OF THE HOMEOWNER. ANY WAIVER OF THE PROVISIONS OF THIS SECTION SHALL BE VOID AND UNENFORCEABLE AS CONTRARY TO PUBLIC POLICY." NY S 8678 SPONSOR: Libous [R] TITLE: Motor Vehicle Franchisor DISPOSITION: Enacted LOCATION: Chaptered Commentary: Amends the law in New York governing the motor vehicle franchisor motor vehicle dealer relationship. Provides that arbitration may be used to resolve disputes only if after the dispute arises both parties agree to arbitrate in writing. US S 3432 SPONSOR: Casey [D] TITLE: Uniformed Services Employment DISPOSITION: Pending LOCATION: Senate Veterans' Affairs Committee Commentary: Invalidates pre dispute arbitration agreements relating to USERRA claims. Only post dispute arbitration agreements for USERRA claims would be enforceable. REGULATIONSMaryland MD 11298 2008 © 2008 National Arbitration Forum - www.adrforum.com - Unsubscribe
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