One of the most confounding doctrines in federal arbitration jurisprudence is the severability doctrine.  The U.S. Supreme Court has held, since Prima Paint in 1967, that courts must enforce arbitration clauses within contracts, even if the entire contract is invalid or unenforceable.  (Most non-arbitration geeks don’t believe me when I tell them that’s the law.)  The only time a court can address the argument for invalidity is if the litigant directs it specifically at the…
Award vacated – Reinstatement order ignored cba limitation on arbitrator’s authority The District Court in Massachusetts has vacated an award of Arbitrator Michael Stutz reinstating an employee dismissed by Steward Holy Family Hospital. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association .  Grievant was employed by the hospital as a nurse. She was dismissed following an incident during which she was alleged to have “assaulted” another employee by grabbing her face and speaking to…
The ABA Journal released its Web 100 awards recently, and I am happy to announce that ArbitrationNation is still in the Blawg Hall of Fame!  ArbitrationNation was inducted into the Hall of Fame last year, after multiple years on the Top 100 list, for being “consistently outstanding,” which is embarrassingly high praise.    There are now 60 blogs in the Blawg Hall of Fame, but Arbitration Nation remains the only blog on the list…
Today’s post covers three new developments from this past week. The Fifth Circuit found a defendant waived its right to arbitrate a class action; the Second Circuit found arbitrators retain power to clarify ambiguous awards; and Jay-Z found his list of potential arbitrators sorely lacking in diversity. In Forby v. One Technologies, 2018 WL 6191349 (5th Cir. Nov. 28, 2018), a class of plaintiffs filed an action for consumer fraud. The defendant waited two years before compelling…
You know what rarely rises to the top of my “to do” list?  Reading scholarly articles and studies about arbitration.  Blech.  But, since I haven’t seen any good court decisions lately, it is time to visit the neglected pile of articles.  Turns out, I should have read some of them right away.  Below are summaries of five new-ish articles that have crossed my desk.  A few offer peeks into arbitration data that is generally not available…
With increasing frequency, Mediation is being utilized to resolve civil disputes.  The reluctance of parties and attorneys to utilize the services of a neutral third party to facilitate settlement negotiations is slowly fading away and mediation is becoming an accepted part of the administration of civil disputes.  As mediation has become more acceptable, the dialogue has failed to recognize the benefits of using mediation techniques is equally valid when applied to  the criminal justice system.…
Arbitrator Richard J. Miller overturned the termination of a Benton County, MN Deputy. Benton County, Foley, Minnesota and Law Enforcement Labor Services, Inc. Grievant began his employment with the County in 2007. He was recognized as a “good and dependable” Deputy. In 2012, grievant sought and received a transfer to a multi-jurisdiction task force focused on violent crime. The new assignment was less structured than his previous position and was subject to looser oversight. Grievant…
In an opinion that coins new terms and uses the insouciant tone of a blogger, the 11th Circuit just shut down a putative class action brought by homeowners against a vendor of roof shingles.  The Court found that the terms and conditions printed on the exterior of the shingle packaging formed an enforceable contract (with a class arbitration waiver), and when the roofing contractors opened the shingles, the roofers bound the homeowners who had hired them.  Dye v. Tamko…
Please join us for the national webcast of “Effective Mediation of Technology Litigation” involving trade secret misappropriation and patent infringement on December 12, 2018 from 12-2 p.m. PST. You may register at the following link: https://buff.ly/2JMvI0b  It will also be presented live at the Santa Clara County Bar Association Seminar & Conference Center in San Jose, CA, and will be available On Demand thereafter. I am serving as the Program Chair and Moderator of this…
Hogan Lovells hosted an event yesterday, 30 October 2018, at its Hong Kong office, as part of the Hong Kong Arbitration Week, titled “Making Arbitration Fit for the Future”.  The event was graced by the presence of Bernard Hanotiau as the keynote speaker, followed by speeches from HKIAC’s Sarah Grimmer and Hogan Lovells’ James Kwan, Julianne Hughes-Jennett and Dan González. Keynote Speaker: Bernard Hanotiau Bernard Hanotiau kicked off the seminar by noting…