Federal Cases
Class Action Waiver Upheld Under D.C. Law
Szymkowicz v. DirecTV, Inc., No. Civ. A. 07-0581PLF, 2007 WL 1424652 (D.D.C. May 9, 2007)
5/9/2007
A federal district court in the District of Columbia (D.C.) relied on the law of a neighboring jurisdiction in holding that an arbitration agreement which bars class-wide proceedings is enforceable under D.C. law.
In Szymkowicz v. DirecTV, Inc., No. Civ. A. 07-0581PLF, 2007 WL 1424652 (D.D.C. May 9, 2007), Szymkowicz sued DirecTV, his television service provider. DirecTV filed a motion to compel arbitration pursuant to an arbitration agreement that barred class-wide proceedings... Full Story
5th Circuit Court of Appeals Upholds Confirmation of Award over "Manifest Disregard" Challenge
American Laser Vision, P.A. v. Laser Vision Institute, L.L.C., No. 06-10260, 2007 WL 1430223 (5th Cir. May 16, 2007)
5/16/2007
The 5th Circuit Court of Appeals has upheld the confirmation of a $1.84 million award to an ophthalmologist's association despite the losing service company's allegation that the award was issued in "manifest disregard" of the law.
In American Laser Vision, P.A. v. Laser Vision Institute, L.L.C., No. 06-10260, 2007 WL 1430223 (5th Cir. May 16, 2007), American Laser Vision, P.A. (ALV) – originally an association of two eye doctors – sued Laser Vision Institute, L.L.C. (LVI) for breach of contract... Full Story
Court Enforces Panel's Interpretation of Unclear Stipulation Submitted by the Parties
Oxbow Carbon and Minerals LLC v. Votorantim Cimentos Ltda, No. 06 Civ. 7763(LBS), 2007 WL 120692 (S.D.N.Y. Jan. 17, 2007)
1/17/2007
When arbitrating parties submit an incomplete and unclear stipulation seeking a bifurcated proceeding, an arbitration panel does not exceed its authority by operating under its interpretation of the stipulation, according to the United States District Court for the Southern District of New York.
In Oxbow Carbon and Minerals LLC v. Votorantim Cimentos Ltda, No. 06 Civ. 7763(LBS), 2007 WL 120692 (S.D.N.Y. Jan. 17, 2007), Oxbow and Votorantim submitted a commercial dispute to arbitration. Oxbow requested bifurcation to expedite the dispute's resolution. The panel requested a joint letter from both parties confirming their decision to bifurcate and limit the panel's authority... Full Story
Broad Language in Arbitration Provision Encompasses All Claims Referring to the Contract at Issue, Including RICO Allegations
Health Quip, Inc. v. 8805, Inc., No. 1:06 CV 3002, 2007 WL 1452629 (N.D. Ohio May 15, 2007)
5/15/2007
When parties employ broad language in arbitration provisions, courts will broadly construe the scope of the arbitrable issues within to encompass all claims that would refer "to the contract or relationship at issue," according to the United States District Court for the Northern District of Ohio.
In Health Quip, Inc. v. 8805, Inc., No. 1:06 CV 3002, 2007 WL 1452629 (N.D. Ohio May 15, 2007), the buyer of a health care company sought to stay court proceedings initiated by the seller, arguing that the various statutory, contract, and tort claims raised in the lawsuit were within the scope of arbitration provisions contained in the sale documents... Full Story
Oklahoma Federal Court Orders Arbitration of Tort Claims Under Broad "All Disputes Hereunder" Arbitration Clause Language
International Asset Management, Inc. v. Holt No. 06-CV-158-TCK-SAJ, 2007 WL 1407006 (N.D. Okla. May 9, 2007)
5/9/2007
According to an Oklahoma federal district court, a lease agreement calling for arbitration of "all disputes hereunder" encompasses tort claims for types of damage in addition to those types specifically enumerated in the agreement.
In International Asset Management, Inc. v. Holt No. 06-CV-158-TCK-SAJ, 2007 WL 1407006 (N.D. Okla. May 9, 2007), the Holts entered into a lease with International Asset Management (IAM) whereby IAM leased several hundred acres of the Holt's land for oil and gas exploration. The Holts filed various tort claims against IAM. After the addition of a non-diverse defendant destroyed diversity, IAM sought an order to compel arbitration from the federal district court... Full Story
State Cases
California Court of Appeals Finds Plaintiffs Lack Standing to Challenge Arbitration Agreement in Cell Phone Service Provider Contract
Meyer v. Sprint Spectrum L.P., No. G037375, 2007 WL 1430343 (Cal. Ct. App. May 16, 2007)
5/16/2007
A California Court of Appeal has ruled that because allegedly unconscionable contract terms were never asserted against them, the Plaintiffs seeking to sue a cell phone service provider lacked standing to bring their claims.
In Meyer v. Sprint Spectrum L.P., No. G037375, 2007 WL 1430343 (Cal. Ct. App. May 16, 2007), Meyer, a customer of Sprint Spectrum L.P. (Sprint) – a cell phone service provider – claimed that her customer service agreement with Sprint included illegal and unconscionable terms, including an agreement to arbitrate... Full Story
Non-signatories Not Bound to Arbitrate Under Either Third-party Beneficiary or Agency Grounds
San Francisco Unified School Dist. v. Keenan & Associates, No. A112106, 2007 WL 1417419 (Cal. Ct. App. May 15, 2007)
5/15/2007
A non-signatory to an arbitration agreement is not bound to arbitrate absent a third-party beneficiary or agency relationship requiring the non-signatory to do so, ruled a California appellate court.
In, San Francisco Unified School Dist. v. Keenan & Associates, No. A112106, 2007 WL 1417419 (Cal. Ct. App. May 15, 2007), insurance broker Keenan sought to compel the San Francisco Unified School District (SFUSD) to arbitrate breach of fiduciary duty claims based upon alleged kickbacks received by Keenan from insurers issuing policies to SFUSD... Full Story
Court Enforces Award After Arbitrators Refuse to Permit Claim Amendments or to Postpone Hearing
SWAB Financial v. E*Trade Securities, No. B191166, 2007 WL 1439539 (Cal. Ct. App. May 17, 2007)
5/17/2007
Arbitrators do not abuse their discretion when they refuse to permit amendment of an arbitration claim and proceed to conduct a hearing and issue an award in the absence of a party who has employed delaying tactics and does not appear for a scheduled hearing, according to the California Court of Appeal.
In SWAB Financial v. E*Trade Securities, No. B191166, 2007 WL 1439539 (Cal. Ct. App. May 17, 2007), investment company E*Trade appealed the grant of a petition to vacate an arbitration award in its favor. The award was issued in investor SWAB's absence after SWAB's request to amend their complaint was denied by the arbitrators... Full Story
Public Policy Challenge Must Be Based Upon Policy Embodied by Entire Statutory Regime and Not Merely Violation of a Specific Provision
Liew v. H & Y Const., Inc., FSTCV07040111665, 2007 WL 1414993 (Conn. Super Ct. Apr. 27, 2007)
4/27/2007
A Connecticut Court declined to vacate a construction arbitration award because the arbitrator's decision did not violate clear public policy as expressed in the state's home improvement statutes.
In Liew v. H & Y Const., Inc., FSTCV07040111665, 2007 WL 1414993 (Conn. Super Ct. Apr. 27, 2007), Liew contracted with construction company H & Y to make home repairs. Two years later, the parties amended the contract to include construction of a playroom... Full Story
Missouri Supreme Court Rejects Order Enforcing Mediated Settlement Agreement Because Attorney's Authority Not Established; Clarifies Process for Enforcement
Eaton v. Mallinckrodt, Inc., No. SC 88122, 2007 WL 1428721 (Mo. May 15, 2007)
5/15/2007
The Supreme Court of Missouri has reversed a trial court's order enforcing a mediated settlement agreement because of a factual dispute over the authority of one party's attorney to make the settlement offer.
In Eaton v. Mallinckrodt, Inc., No. SC 88122, 2007 WL 1428721 (Mo. May 15, 2007), Eaton had field suit for property damage allegedly caused by groundwater made toxic by waste discharged from a nuclear power plant operated by Mallinckrodt, Inc... Full Story
Arbitrators Exceeded Their Authority by Ignoring Clear Language of Contract
First Merit Realty Services, Inc. v. Amberly Square Apartments, L.P., No. 1-05-3556, 2007 WL 1376227 (Ill. App. Ct. May 10, 2007)
5/10/2007
The Illinois Court of Appeals held that a three-member arbitration panel exceeded their authority by awarding damages for termination of contract where there was no dispute that the party terminating the contract complied with a provision allowing termination on 30-days notice.
In First Merit Realty Services, Inc. v. Amberly Square Apartments, L.P., No. 1-05-3556, 2007 WL 1376227 (Ill. App. Ct. May 10, 2007), First Merit Realty (FMR) managed rental properties for Amberly Square Apartments and several other entities (collectively, the Owners). The management agreement contained an arbitration clause that named the American Arbitration Association (AAA) as the administrator... Full Story
ADR Legislation & Regulation
LEGISLATION
AZ H 2758
AUTHOR: Adams [R]
TITLE: Justices of the Peace
INTRODUCED: 02/06/2007
DISPOSITION: To Governor
Commentary:
Revising existing statutes relating to funding. The justice of the peace may require arbitration or other dispute resolution methods that are approved by the supreme court in all civil actions, except forcible entry or detainer actions.
AZ S 1546
AUTHOR: Cheuvront [D]
TITLE: Condominium Recovery Fund
INTRODUCED: 01/29/2007
ENACTED: 05/18/2007
DISPOSITION: Enacted
Commentary:
Condo recovery fund (protecting consumers) includes arbitration awards by AAA rules "or another recognized arbitration body" in definition of "judgment" for purposes of the Act.
CO H 1331
SPONSOR: Carroll M [D]
TITLE: Michael Skolnik Medical Transparency Act
INTRODUCED: 03/05/2007
ENACTED: 05/24/2007
DISPOSITION: Enacted
Commentary:
Medical Transparency Act: Requires applicants to State Board of Medical Examiners to provide information about malpractice judgments against them, INCLUDING arbitration hearings (court/mediation).
CT H 7024
INTRODUCER: Joint Public Safety and Security
TITLE: Intrastate Mutual Aid System
INTRODUCED: 02/01/2007
ENACTED: 05/22/2007
DISPOSITION: Enacted
Commentary:
Creates an intrastate mutual aid system for municipalities. Any dispute between political subdivisions regarding reimbursement shall be resolved by the parties not later than thirty days after written notice of the dispute by the party asserting noncompliance. If the dispute is not resolved within ninety days of the notice of the claim, either party may request that the dispute be resolved through arbitration. Any such arbitration shall be conducted under the commercial arbitration rules of the American Arbitration Association.
FL H 311
IDENTICAL: FL S 1936
AUTHOR: Safety and Security Council Cmt
TITLE: Probate
INTRODUCED: 03/06/2007
ENACTED: 05/24/2007
DISPOSITION: Enacted
Commentary:
Permits clauses in wills, other than the validity of all or part of the will, to be subject to arbitration.
FL H 7107
COMPARE: FL H 253, FL H 1571, FL S 1682, FL S 1996
SIMILAR: FL S 2870
AUTHOR: Healthcare Council Cmt
TITLE: Child Support Enforcement
INTRODUCED: 04/02/2007
ENACTED: 05/24/2007
DISPOSITION: Enacted
Commentary:
Deceptive and Unfair Trade Practices, in auto sales industry: clarifying role for arbitrator in determining improper imposition of attorney fees.
KY BR 24
SPONSOR: Rollins [D]
(2008)TITLE: Family Trust Program
PREFILED: 05/02/2007
DISPOSITION: Pending
LOCATION: HOUSE
Commentary:
Establishes the Kentucky Family Trust Program, establishing and operating a trust program to manage funds placed in the trust for the benefit of persons with special health care needs. Funds placed in the trust are to be used to supplement state provided assistance. Requires arbitration of disputes certain arising under the Program to be settled by arbitration.
LA S 256
AUTHOR: Hollis [R]
TITLE: Motor Vehicles
INTRODUCED: 04/30/2007
DISPOSITION: Pending
LOCATION: HOUSE
Commentary:
Proposed law makes void and unenforceable any litigation or arbitration clause contained in a motor vehicle credit transaction which would remove the transaction outside of Louisiana.
ME H 1193
LD: 1710
AUTHOR: Mills JT [D]
TITLE: Municipal Foreclosure Procedures
INTRODUCED: 03/27/2007
DISPOSITION: Failed
LOCATION: Died
Commentary:
This bill would require a municipality to provide notice of the availability of excess funds following foreclosure for failure to pay taxes, and provides for [private] arbitration of excess funds disputes.
ME S 516
LD: 1489
AUTHOR: Bowman [D]
TITLE: Arbitration
INTRODUCED: 03/20/2007
LAST AMEND: 05/23/2007
DISPOSITION: Pending
LOCATION: Concurrence
Commentary:
Relates to consumer arbitration; the 5/23/07 amendment places reporting requirements on "arbitration service providers" to the state. Except for the name of the provider (arbitration administrator) and of individual arbitrators, the information reported to the administrator (Director of the Office of Consumer Credit Regulation) by a provider related to each consumer arbitration is confidential and may not be disclosed by the administrator unless the information is disclosed in aggregate form.
ME S 707
LD: 1907
AUTHOR: Brannigan [D]
TITLE: Autism and Mental Retardation Services
INTRODUCED: 05/16/2007
DISPOSITION: Pending
LOCATION: Joint Committee on Health and Human Services
Commentary:
Establishes the Maine Developmental Services Oversight and Advisory Board. Provides for resolution of grievances through mediation.
MI H 4839
SPONSOR: Farrah [D]
TITLE: Abandoned Cars
INTRODUCED: 05/24/2007
DISPOSITION: Pending
LOCATION: House Transportation Committee
Commentary:
Amending the insurance code. Amendments include: g) All insurance policies providing for uninsured motorist benefits and underinsured motorist benefits shall give the claimant the option of binding arbitration of the claim. Points to arbitration procedure in different section (50) of act.
MN H 413
COMPANION: MN S 761
IDENTICAL: MN S 832
AUTHOR: Lillie [DFL]
TITLE: Commerce
INTRODUCED: 01/29/2007
DISPOSITION: Pending Carryover
LOCATION: SENATE
Commentary:
A bill for regulating franchise agreements between outdoor sport equipment dealers and manufacturers, allows arbitration to handle billing disputes;
MN H 1208
COMPANION: MN S 998
AUTHOR: Mahoney [DFL]
TITLE: Construction Codes
INTRODUCED: 02/19/2007
DISPOSITION: To Governor
Commentary:
Relates to construction codes; recodifies and modifying construction codes and licensing provisions; adds "bad faith, unreasonable delays, or frivolous claims in defense of a civil lawsuit or arbitration" as grounds for loss of construction license; also, for plumbing sales reps, adds "To be effective, any demand for arbitration under subdivision 5 must be made in writing and delivered to the principal on or before one year after the effective date of the termination of the agreement."
MN S 596
COMPANION: MN H 1360
AUTHOR: Olson M [DFL]
TITLE: Data Practices
INTRODUCED: 02/07/2007
ENACTED: 05/24/2007
DISPOSITION: Enacted
Commentary:
Revises mediation data practices for ADR services related to certain labor disputes.
MN S 761
COMPANION: MN H 413
AUTHOR: Sparks [DFL]
TITLE: Commerce
INTRODUCED: 02/12/2007
DISPOSITION: Pending Carryover
LOCATION: Indefinitely Postponed
Commentary:
In disputes between outdoor sport equipment dealers and manufacturers, "If no agreement is reached in a reasonable time, the escrow agent may refer the matter to an arbitrator who has authority to resolve all unsettled issues in the dispute."
MN S 998
COMPANION: MN H 1208
AUTHOR: Scheid [DFL]
TITLE: Construction Codes
INTRODUCED: 02/19/2007
DISPOSITION: Pending Carryover
LOCATION: Senate Rules and Administration Committee
Commentary:
Amending an act relating to construction codes. Amendments include: (b) To be effective, any demand for arbitration under subdivision 5 must
be made in writing and delivered to the principal on or before one year after the effective date of the termination of the agreement.
MT S 74
AUTHOR: Jent [D]
TITLE: Title Loan Act
INTRODUCED: 01/03/2007
ENACTED: 05/16/2007
DISPOSITION: Enacted
Commentary:
A title loan arbitration clause may not be oppressive or unconscionable mandatory arbitration clauses complying with AAA rules will be presumptively valid.
MT S 393
AUTHOR: Gillan [D]
TITLE: Require Mediation Of Custody In Dissolution Of Mar
INTRODUCED: 01/30/2007
VETOED: 05/17/2007
DISPOSITION: Vetoed
LOCATION: Vetoed by Governor
Commentary:
Mediation of custody issues in dissolution of marriage.
NV A 431
AUTHOR: Horne [D]
TITLE: Condominium Hotel Provisions
INTRODUCED: 03/19/2007
DISPOSITION: Pending
LOCATION: SENATE
Commentary:
Establishes provisions governing condominium hotels. Provides for mediation, binding and non binding arbitration of certain disputes arising under the statute.
NV S 72
AUTHOR: Care [D]
TITLE: Uniform Limited Partnership Act
INTRODUCED: 02/06/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Commentary:
In winding up a limited partnership, parties may use arbitration or mediation to settle disputes.
NV S 292
AUTHOR: Care [D]
TITLE: Uniform Mediation Act
INTRODUCED: 03/15/2007
DISPOSITION: Failed
LOCATION: Died
Commentary:
Would enact the Uniform Mediation Act, as promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), in the State of Nevada.
OK H 1589
AUTHOR: Jones [R]
TITLE: Charter School Act
INTRODUCED: 02/05/2007
DISPOSITION: To Governor
LOCATION: To Enrollment
Commentary:
Relates to the Oklahoma Charter Schools Act; if a board of education proposed sponsor rejects the revised application for a charter school, the applicant may proceed to mediation or binding arbitration or both mediation and binding arbitration as provided in the Dispute Resolution Act.
OK H 1926
AUTHOR: McDaniel [D]
TITLE: Department of Human Services Reimbursement Review
INTRODUCED: 02/05/2007
DISPOSITION: To Governor
Commentary:
Related to health and human services; provides for mediation by an independent entity chosen by the parties to the contract in the event of contract disputes.
OR S 62
AUTHOR: Courtney [D]
TITLE: Landscaping Business Bond
INTRODUCED: 01/08/2007
ENACTED: 05/25/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Commentary:
Adjusts language regarding recovery of arbitration awards from bond or other security of landscaping business.
OR S 63
AUTHOR: Courtney [D]
TITLE: Landscaping Businesses and Landscaping Contractors
INTRODUCED: 01/08/2007
ENACTED: 05/25/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Commentary:
This bill would require contractors to notify the Licensing Board of arbitration awards.
OR S 198
AUTHOR: Courtney [D]
TITLE: Academic Degrees
INTRODUCED: 01/11/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Commentary:
Amending act relating to academic degrees. Mediation mention unaffected; required arbitration of disputes deleted.
OR S 256
AUTHOR: Courtney [D]
TITLE: Motor Vehicle Liability Insurance
INTRODUCED: 01/12/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Commentary:
Relating to arbitration of motor vehicle liability disputes; creating new provisions; and amending ORS 742.504, 742.520 and 742.522. Amends the rules governing vehicle liability arbitration in Oregon. The system does not provide for a sole administrator of arbitrations, but rather leaves the selection of arbitrators up to the parties.
TN S 2031
AUTHOR: Haynes [D]
TITLE: Liens
INTRODUCED: 02/15/2007
ENACTED: 05/18/2007
DISPOSITION: Enacted
Commentary:
Whenever, in any contract for the improvement of real property, a certain amount or percentage of the contract price is retained, that retained amount shall be deposited in a separate, interest bearing, escrow account with a third party. All claims, demands, disputes, controversies, and differences that may arise between the owner, prime contractor or prime contractors, and remote contractor or remote contractors regarding such funds may be, upon written agreement of all parties concerned, settled by arbitration conducted pursuant to the Tennessee Uniform Arbitration Act, compiled in Title 4, Chapter 5, Part 3, or the Federal Arbitration Act (9 U.S.C. Section 1, et seq.), as may be applicable.
TX H 1038
AUTHOR: Ritter [D]
TITLE: Residential Construction Commission
INTRODUCED: 02/01/2007
LAST AMEND: 05/21/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Commentary:
Relates to the operation of the Texas Residential Construction Commission: Makes strict requirements for placing/signing arbitration agreements:
(c) If a contract described ... contains a clause that requires the parties to submit a dispute arising under the contract to binding arbitration, the owner must acknowledge acceptance of the clause in writing by signing the contract in a space provided for that purpose immediately adjacent to the clause. The clause must be conspicuously printed or typed in a size equal to at least 14 point bold type. A May 15, 2007 amendment to the bill replaced the 14 point type requirement with a 10 point type requirement, and eliminated the signature requirement.
TX H 2278
AUTHOR: Deshotel [D]
TITLE: Business and Commerce Nonsubstantive Revisions
INTRODUCED: 03/01/2007
LAST AMEND: 04/27/2007
DISPOSITION: To Governor
LOCATION: To Governor
Commentary:
"Relates to a nonsubstantive revision of statutes relating to business and commerce; includes conforming amendments" Amendments include: "(b) If a contract contains a provision making the contract or any conflict arising under the contract subject to another state's law, litigation in the courts of another state, or arbitration in another state, that provision is voidable by the party obligated by the contract to perform the construction or repair. (Bus. & Com. Code, Sec. 35.52(a); Sec.273.002.NOTICE OF APPLICABLE LAW OR FORUM. If a contract contains a provision making the contract or any conflict arising under the contract subject to another state's laws, litigation in the courts of another state, or arbitration in another state, that provision must be set out conspicuously in print, type, or other form of writing that is boldfaced, capitalized, underlined, or otherwise set out in such a manner that a reasonable person against whom the provision may operate would notice the provision."
US H 2337
SPONSOR: Rahall [D]
TITLE: Energy Policy Reforms and Public Accountability
INTRODUCED: 05/16/2007
DISPOSITION: Pending
LOCATION: Multiple Committees
Commentary:
Enacting a bill to promote energy policy reforms and public accountability, alternative energy and efficiency, and carbon capture and climate change mitigation, and for other purposes.
(3) PROCEDURE outlines procedure for arbitration if dispute between the surface estate owner and the operator is not settled within 90 days.
WA H 2135
COMPANION: WA S 5968
AUTHOR: Wood [D]
TITLE: Lemon Law Coverage
INTRODUCED: 02/09/2007
ENACTED: 05/11/2007
DISPOSITION: Enacted
Commentary:
Expands lemon law coverage to out of state consumers, including arbitration board.
WA S 5050
AUTHOR: Weinstein [D]
TITLE: Motor Vehicle Lemon Law
INTRODUCED: 01/09/2007
ENACTED: 05/11/2007
DISPOSITION: Enacted
Commentary:
Dealers may not be made parties to arbitration board proceedings under state motor vehicle lemon law.
REGULATION
No new regulations.
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