Federal Court in New Jersey Rules That FAA Preempts Rule Against Class Waivers in Arbitration Agreements A federal district court in New Jersey has ruled that the Federal Arbitration Act (FAA) preempts a New Jersey Supreme Court decision holding that a class waiver, if it functions as an exculpatory clause, renders an arbitration agreement unconscionable and therefore unenforceable under New Jersey law. Arbitration Agreements Do Not Impair Protections Guaranteed by USERRA In granting a motion to compel arbitration, a federal district court in Colorado held that Uniform Services Employment and Reemployment Rights Act (USERRA) claims are arbitrable because there is no inherent conflict between arbitration and USERRA’s underlying structure and purpose, as arbitration “presents a fair opportunity for a claimant to present and prevail on a claim of a USERRA violation.” New York Federal District Court Entertains “Manifest Disregard” Challenge without Deciding Precise Impact of Hall Street A federal district court in New York has rejected an aggrieved party's efforts to vacate an arbitration award, holding that the arbitrator did not exceed his powers or manifestly disregard the law by dismissing a counterclaim. Court Rejects Manifest Disregard and Public Policy Challenges to Arbitration Award in Commercial Dispute A federal district court in Colorado confirmed a telecommunications company’s arbitration award, determining that the adverse party’s manifest disregard and public policy arguments were not applicable to the arbitrator’s decision. Discovery Limitation in Employment Arbitration Agreement Survives Challenge In upholding an employee arbitration agreement, a federal district court in New Jersey rejected the employee’s argument that discovery limitations rendered the agreement unconscionable and therefore unenforceable. Court Upholds Arbitration Agreement Where Borrower Could Reject Agreement Within 15 Days of Signing Contract In granting a lender’s motion to compel arbitration, a federal court in Pennsylvania rejected a borrower’s claims of procedural and substantive unconscionability, holding that challenges to a contract’s allegedly unfair terms, as a whole, go to the merits of a claim and should be heard by an arbitrator. Texas Mediation Confidentiality Prohibits Any Testimony by Mediator at Later Litigation Between the Parties A Texas federal district court held that the mediation privilege under Texas law prohibits a mediator from later testifying on behalf of one of the parties at litigation, even if the mediator's anticipated testimony would not directly reveal any confidential information from the mediation session. Cardholder’s Use of Credit Card Demonstrates Acceptance of Terms and Conditions, Including Arbitration Agreement A federal district court in Utah rejected a cardholder’s claim that he had never agreed to arbitrate because the cardholder’s use of the card demonstrated his acceptance of the card’s terms and conditions, including the arbitration agreement.
Employment Application Does Not Equal Arbitration Agreement A California appellate court determined that an employment application that disclaimed the formation of an employment contract was not sufficient to establish the existence of an arbitration agreement between the employer and employee. The Court thus denied the employer’s motion to compel arbitration. California Court of Appeal Finds Next-Of-Kin Status Sufficient to Admit Patient for Treatment, But Insufficient to Bind Patient to Arbitrate Citing "ambiguous" language in arbitration agreements regarding the legal status of signatories, a California appellate court has refused to compel arbitration of a decedent's claims against a nursing home, finding the signatory's next-of-kin status insufficient to agree to arbitration on the decedent’s behalf. Colorado Supreme Court Limits Scope of Mediation Confidentiality The Colorado Supreme Court has held that the Colorado Dispute Resolution Act only provides confidentiality for mediation communications made "for the purposes of, in the course of, or pursuant to specific mediation proceedings," and that mediated settlement agreements may be enforced on common law contract grounds outside the Act's statutory confidentiality exception for written, signed agreements. Claim for Public Injunction Not Arbitrable According to Florida Court Ignoring two sister appellate court holdings that held arbitrators could grant injunctive relief without offending public policy, a Florida Court of Appeals has held that claims seeking injunctive relief for public benefit under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA") are not arbitrable. Extensive Litigation Activity in Small Claims Court May Waive Right to Arbitrate Claims Later Amended and Transferred to General Trial Court A Florida appellate court has held that a party's extensive litigation activity in small claims court can waive the right to arbitrate claims once those claims are transferred to a general trial court, even if the party attempts to preserve the arbitration agreement as an affirmative defense in its small claims filings and promptly moves to compel arbitration after the matter is transferred to general court at the adverse party's request. Arbitration Administrator’s Refusal to Hear Claim Paves Way for Party to Sue in Court on Magnuson-Moss Warranty Claim The Appellate Court of Illinois has held that a designated arbitration administrator's refusal to resolve a consumer-submitted Magnuson-Moss warranty dispute does not deprive that consumer of the right to seek resolution of the dispute through litigation. The administrator refused to hear the claim because the vehicle had been repossessed. Missouri Appellate Court Reaffirms Ten Day Limitation on Notice of Appeal of Order Denying Motion to Compel
A Missouri appellate court has reiterated that a notice of appeal of an order denying a motion to compel arbitration must be filed within ten days of the trial court's order to be considered timely under Missouri law. Missouri Court of Appeals Holds That Wrongful Death Claims Are Not Derivative and Thus Not Subject to Decedent’s Arbitration Agreements Rejecting unambiguous language from the Missouri Supreme Court declaring that wrongful death claims are derivative and not independent causes of action, the Missouri Court of Appeals has affirmed a trial court order denying a health care provider's motion to compel arbitration of wrongful death claims. Finance Company Can Compel Arbitration as Assignee of Vehicle Purchase Contract's Arbitration Agreement A Missouri appellate court has compelled arbitration of statutory fraudulent concealment claim arising out of a motor vehicle purchase contract, holding that the finance company was not a non-party to the buyer-dealer arbitration agreement, but rather stepped into the shoes of the dealer as an assignee. Operative Measuring Date for 90-Day Statute of Limitations Begins at Receipt of Arbitration Award A New York appellate court determined that a 90-day statute of limitations under New York law begins to run on the date on which the arbitrator’s decision was received by the parties, and not when the decision was mailed. New York Supreme Court Analyzes Attorney Fees Award for Manifest Disregard After Hall Street Failing to address whether "manifest disregard of the law" remains a valid ground for vacatur or modification of arbitration awards, a New York Supreme Court has confirmed an award of attorney fees for a wrongfully discharged investment bank employee. Aggrieved Party Must Suffer Harm to Seek Vacatur Based on Delay in Issuing Arbitration Award Without a showing that the moving party both objected to the arbitrator’s delay before the award was issued and suffered prejudice or harm from that delay, an arbitration award will not be vacated based on its untimeliness, according to an Ohio appellate court. Texas Arbitration Act Provides for Alternate Appointment of Arbitrator, But Act Must Be Designated as Controlling in Agreement for Court to Act While the Texas Arbitration Act (TAA) allows a court to appoint an alternate arbitrator should the arbitrator designated in the agreement become unwilling or unable to serve, the agreement’s failure to designate the Texas act as controlling prohibits the court from making such an appointment, according to a Texas appellate court.
LEGISLATION PA S 100 PN: 2484 AUTHOR: Tomlinson [R] TITLE: Home Improvement Regulation DISPOSITION: Enacted LOCATION: Chapter Commentary: This statute, pertaining to the regulation of home improvement contracts (HIC), provides: "(d) Arbitration clause. Nothing in this act shall preclude the court from setting aside an arbitration clause on any basis permitted under Pennsylvania law. If the contract contains an arbitration clause, it shall meet the following requirements or be deemed void by the court upon motion of either party, filed prior to the commencement of arbitration: (1) The text of the clause must be in capital letters; (2) The text shall be printed in 12 point boldface type and the arbitration clause must appear on a separate page from the rest of the contract; (3) The clause shall contain a separate line for each of the parties to indicate their assent to be bound thereby; (4) The clause shall not be effective unless both parties have assented as evidenced by signature and date, which shall be the date on which the contract was executed; (5) The clause shall state clearly whether the decision of the arbitration is binding on the parties or may be appealed to the court of common pleas; (6) The clause shall state whether the facts of the dispute, related documents and the decision are confidential." REGULATIONS Maryland COMAR 09.03.10.01 - .03 AGENCY: Department of Labor, Licensing and Regulation/Commissioner of Financial Regulation TITLE: Credit and Other Regulations Commentary: This proposed regulation would require a regulated person that offers to make or procure a mortgage loan secured by residential real property to provide the borrower a disclosure that the mortgage loan includes a mandatory binding arbitration clause. The disclosure would read: "The mortgage loan you have applied for contains a mandatory binding arbitration provision. This means that, as to the matters covered by the arbitration provision, you are giving up your right to a jury or court trial if you have a dispute with the lender. Read your mortgage loan documents carefully to understand how mandatory binding arbitration will impact your rights to resolve disputes." New York Title 12 NYCRR Section 325-6.15 AGENCY: Workers' Compensation Board TITLE: Arbitration Filing Fees Commentary: The proposed rule would increase the arbitration filing fees associated with the WCB's Health Insurers Matching Program (HIMP). Specifically, the rule would increase the arbitration filing fees from $75 ($15 to the arbitrator and $60 to the American Arbitration Association) to $150, with $40 going to the arbitrator and $110 being retained by AAA. Texas 10 TAC 6.256.B.256.100, .200, .300, .400, .500 AGENCY: Office of Rural Community Affairs TITLE: Office of Rural and Community Affairs Commentary: The proposed rule would require the Office to use mediation, negotiated rulemaking, or other alternative methods to resolve disputes that come under the Office's jurisdiction. The ADR Coordinator is charged with choosing a qualified third-party neutral to resolve the disputes. © 2008 National Arbitration Forum - www.adrforum.com - Unsubscribe
|