Federal Cases
Federal Court Grants Comity to Tribal Court’s Vacatur of Arbitration Award
First Specialty Insurance Corp. v. Confederated Tribes of Grand Ronde Community of Oregon, No. 07-05-KI, 2007 WL 3283699 (D. Or. Nov. 2, 2007)
11/2/2007
A federal district court in Oregon granted comity to a tribal court ruling vacating an arbitration award, finding that the tribal court properly exercised jurisdiction based on a “consensual relationship” between the parties. The decision to grant comity meant that the Court could not inquire into the propriety of the tribal court’s decision to conduct a de novo review of the arbitration award.
In First Specialty Insurance Corp. v. Confederated Tribes of Grand Ronde Community of Oregon, No. 07-05-KI, 2007 WL 3283699 (D. Or. Nov. 2, 2007), the Confederated Tribes of the Grande Ronde Community of Oregon (the Tribe) sued their investment advisor, Strategic Wealth Management (SWM), in an Oregon court. In response, SWM moved to compel arbitration pursuant to an arbitration agreement in the parties’ contract... Full Story
Prohibition on Written Opinions Renders Employee's Arbitration Agreement Unenforceable
Lucey v. FedEx Ground Package Systems, Inc., Civ. No. 06-3738 (RMB), 2007 WL 3052997 (D.N.J. Oct. 18, 2007)
10/18/2007
A federal district court in New Jersey has declared an employment arbitration agreement unconscionable due in part to "prohibitively expensive" arbitration fees and a complete prohibition on written opinions beyond basic disposition statements.
In Lucey v. FedEx Ground Package Systems, Inc., Civ. No. 06-3738 (RMB), 2007 WL 3052997 (D.N.J. Oct. 18, 2007), FedEx hired the plaintiffs as delivery drivers and required the plaintiffs to execute "Operating Agreements" before beginning work. FedEx later terminated the plaintiffs... Full Story
Requiring Attorneys to Serve As Court Appointed Arbitrators on Limited Basis Not a "Taking"
Scheehle v. Justices of Supreme Court of Arizona, No. 05-17063, 2007 WL 3377965 (9th Cir. Nov. 15, 2007)
11/15/2007
The Ninth Circuit Court of Appeals held that an Arizona court's arbitration appointment system, whereby attorneys are required to serve as arbitrators for up to two days a year, does not constitute a taking that triggers the constitutional requirement of just compensation.
In Scheehle v. Justices of Supreme Court of Arizona, No. 05-17063, 2007 WL 3377965 (9th Cir. Nov. 15, 2007), Scheele, an Arizona attorney, challenged an arbitrator appointment system used by an Arizona trial court whereby experienced attorneys are required to serve as arbitrators (for $75 per day) for up to two days a year. Specifically, Scheele argued that the service requirement constituted an unconstitutional taking. The district court ruled that the system did not constitute a taking... Full Story
Arbitration Agreements Imposing Truly Mutual Obligations to Arbitrate Not Unconscionable Under Armendariz
Sinclair v. ServiceMaster Co., No. CIV. 07-611 FCD/KJM, 2007 WL 3407138 (E.D. Cal. Nov. 14, 2007)
11/14/2007
A California federal court held that an employment arbitration agreement was valid despite a bar on punitive damages awards because, unlike in previous cases, both parties to this agreement were precluded from seeking punitive damages.
In Sinclair v. ServiceMaster Co., No. CIV. 07-611 FCD/KJM, 2007 WL 3407138 (E.D. Cal. Nov. 14, 2007), Ken Sinclair was employed with ServiceMaster and entered into an employment agreement that contained an arbitration agreement... Full Story
Core Bankruptcy Proceedings Are Arbitrable Where Arbitration Does Not Conflict with Bankruptcy Code
In re Saigon Plaza Ass'n, LLC, NO. 07-40169 LT, 07-4149, 2007 WL 3357641 (Bankr. N.D. Cal. Nov. 05, 2007)
11/5/2007
A Northern District of California bankruptcy court applied Fifth Circuit precedent whereby core bankruptcy proceedings are arbitrable if arbitration would not conflict with the bankruptcy code; and rejected the debtor's unconscionability challenge, noting that the stand alone nature of the arbitration agreement weighed against a finding of procedural unconscionability.
In In re Saigon Plaza Ass'n, LLC, NO. 07-40169 LT, 07-4149, 2007 WL 3357641 (Bankr. N.D. Cal. Nov. 05, 2007), Saigon Plaza owned real property which it used to secure loans from California Mortgage & Realty (CMR). In conjunction with the loan documents, Saigon Plaza's principal signed a separate arbitration agreement... Full Story
Claim of Arbitration Administrator Bias Is Rejected
Brockie v. American General Financial Services, Inc., No. 07-60755-CIV, 2007 WL 3379757 (S.D. Fla. Nov. 14, 2007)
11/14/2007
A federal court in Florida enforced an arbitration agreement naming the National Arbitration Forum (FORUM) as an arbitration administrator over the objection of a plaintiff who alleged the FORUM was biased.
In Brockie v. American General Financial Services, Inc., No. 07-60755-CIV, 2007 WL 3379757 (S.D. Fla. Nov. 14, 2007), Kristie Brockie filed suit against American General Financial Services (AGFS) alleging a violation of the Fair Credit Billing Act. AGFS moved to compel arbitration based on an arbitration agreement, naming the FORUM as the arbitration provider in the credit account agreement between the parties... Full Story
Mediator's Participation in Unrelated Litigation Against a Separate Entity Not Evidence of Disqualifying Bias
Sklar v. Clough, No. 1:06-CV-0627-JOF, 2007 WL 3407533 (N.D. Ga. Oct. 30, 2007)
10/30/2007
Mere involvement in unrelated litigation against a separate state government entity does not disqualify a mediator from participation in dispute resolution involving state employees unless actual or potential bias is clearly shown, according to a federal district court in Georgia.
In Sklar v. Clough, No. 1:06-CV-0627-JOF, 2007 WL 3407533 (N.D. Ga. Oct. 30, 2007), the defendants, which included administrators of a Georgia public university, petitioned the Court to remove a previously-appointed mediator. The defendants alleged that the mediator's participation in unrelated litigation against the State of Georgia, including a petition for attorney's fees, would bias the mediator in favor of awarding attorney's fees to the plaintiffs in the instant case... Full Story
Alleged Unauthorized Practice of Law Not Actionable Under Fair Debt Collection Statutes
Lavender v. Wolpoff & Abramson, L.L.P., No. 07-0015-CV-W-FJG, 2007 WL 3244189 (W.D. Mo. Nov. 01, 2007)
11/1/2007
In a case premised on a FORUM arbitration; a federal court in Missouri held that the statute of limitations on claims under the Fair Debt Collection Practices Act (FDCPA) must be adhered to, and engaging in the unauthorized practice of law is not a cognizable claim under the FDCPA.
In Lavender v. Wolpoff & Abramson, L.L.P., No. 07-0015-CV-W-FJG, 2007 WL 3244189 (W.D. Mo. Nov. 01, 2007), Lavender and other Plaintiffs (collectively "Plaintiffs") had credit agreements with MBNA. The Plaintiffs filed suit against Wolpoff, a debt collection law firm for MBNA, alleging various claims under the FDCPA, regarding Wolpoff's actions in arbitration regarding the disputed debt... Full Story
State Cases
Party Fails to Preserve Issue of Arbitrability by Not Objecting to Arbitration Proceeding
MBNA America Bank v. Bailey, No. 27157, 2007 WL 3355482 (Conn. App. Ct. Nov. 20, 2007)
11/20/2007
In a case where a credit card holder failed to participate in arbitration and later attempted to challenge the award beyond the statutory deadline, the Connecticut Appellate Court held that the cardholder could not avoid the statutory deadline by arguing that there was no arbitration agreement because the cardholder did not object to the arbitration proceeding and thereby failed to preserve the issue of arbitrability.
In MBNA America Bank v. Bailey, No. 27157, 2007 WL 3355482 (Conn. App. Ct. Nov. 20, 2007), MBNA filed an arbitration claim against Bailey for the unpaid balance on an MBNA credit card. Bailey did not participate in the arbitration in any way... Full Story
Statutory Claims Not Arbitrable Under New Jersey Law Without an Unambiguous Agreement to Specifically Arbitrate Statutory Claims
Maldanis v. B.G. Pools, Inc., L-3380-06, 2007 WL 3355114 (N.J. Super. Ct. App. Div. Nov. 14, 2007)
11/14/2007
Statutory claims, such as Consumer Fraud Act claims, are not arbitrable under New Jersey law unless the arbitration agreement unambiguously states that parties agree to arbitrate all statutory claims, according to a state appeals court in New Jersey. This result would not obtain if the Federal Arbitration Act governed the arbitration agreement.
In Maldanis v. B.G. Pools, Inc., L-3380-06, 2007 WL 3355114 (N.J. Super. Ct. App. Div. Nov. 14, 2007), Maldanis and B.G. signed a contract for the construction of an in-ground pool. After the allegedly defective construction of the pool, Maldanis filed a complaint against B.G. under the state's Consumer Fraud Act (CFA). B.G. moved to compel arbitration under the contract. The trial court granted the motion, holding that the arbitration provision in the contract deprived the court of jurisdiction to hear the complaint... Full Story
Power of Attorney for Healthcare Decisions has Authority to Agree to Arbitration, According to Tennessee Court of Appeals
Cabany v. Mayfield Rehabilitation and Special Care Center, No. M2006-00594-COA-R3-CV, 2007 WL 3445550 (Tenn. Ct. App. Nov. 15, 2007)
11/15/2007
A Tennessee appellate court vacated an order denying a motion to compel arbitration, noting that the trial court erred in determining that a nursing home resident's wife did not have authority to execute a nursing home arbitration agreement on the resident's behalf.
In Cabany v. Mayfield Rehabilitation and Special Care Center, No. M2006-00594-COA-R3-CV, 2007 WL 3445550 (Tenn. Ct. App. Nov. 15, 2007), Thomas Cabany, Jr. (Thomas) executed a power of attorney designating his wife, Janie Cabany (Janie) as his agent or attorney-in-fact. The agreement stated that it only went into effect when Thomas was not able to make decisions for himself and that his physician and agent would decide when he had reached that point... Full Story
Arbitration Award by Unauthorized Entity Does Not Impede Confirmation of Legitimate Award
MBNA America Bank, N.A. v. Baker, No. M2004-02239-COA-R3-CV, 2007 WL 3443600 (Tenn. Ct. App. Nov. 15, 2007)
11/15/2007
The Tennessee Court of Appeals affirmed confirmation of an arbitration award issued in favor of a credit card issuer even though the cardholder presented a separate arbitration award in his favor because only the award in favor of the issuer was obtained in accordance with the cardmember agreement.
In MBNA America Bank, N.A. v. Baker, No. M2004-02239-COA-R3-CV, 2007 WL 3443600 (Tenn. Ct. App. Nov. 15, 2007), Baker had an unpaid balance on his MBNA credit card. MBNA attempted to collect, but Baker withheld payment, which led to two arbitration proceedings... Full Story
Mediated Settlement Agreement With Disputed Terms Is Invalid Without a Writing or Court Admission Regarding the Disputed Terms
Pryde v. Bjorn, No. 58333-6-I, 2007 WL 3348297 (Wash. Ct. App. Nov. 13, 2007)
11/13/2007
A respondent's showing of a genuine material dispute regarding the terms of a mediated settlement agreement shifts the burden to the petitioner to show that the agreement was memorialized in writing or in open court under Washington court rules, according to a Washington state appellate court.
In Pryde v. Bjorn, No. 58333-6-I, 2007 WL 3348297 (Wash. Ct. App. Nov. 13, 2007), a dispute arose among family members regarding a shared real estate business. After the Pryde plaintiffs filed a suit against the Pryde defendants, alleging forgery, fraud, financial mismanagement, and misappropriation of funds, the parties agreed to mediate the dispute... Full Story
Court May Appoint Arbitrator Where Agreed Selection Method Cannot Account for Consolidated Proceedings
City of Oakland v. Superior Court, No. A117646, 2007 WL 3247272 (Cal. Ct. App. 1 Dist. Nov. 05, 2007)
11/5/2007
An appellate court in California ruled that it had authority to appoint an arbitrator in a dispute because the selection method agreed to by the parties did not contemplate or account for the consolidated proceedings in this case.
In City of Oakland v. Superior Court, No. A117646, 2007 WL 3247272 (Cal. Ct. App. 1 Dist. Nov. 05, 2007), police officers (Officers) for the City of Oakland (City) filed for arbitration against the City based on their Union employment agreement or Memorandum of Understanding (MOU). The Officers' claims were consolidated into one... Full Story
Court Rejects Allegations of Fraud and Arbitrator Misconduct, Affirms Award
Ray v. Cingular Wireless, LLC, No. B195981, 2007 WL 4100136 (Cal. Ct. App. Nov. 19, 2007)
11/19/2007
A California state appeals court affirmed the confirmation of an arbitration award, despite challenges for procurement by fraud and arbitrator misconduct, where the arbitration record clearly indicated that the award could be sustained on other independent contractual grounds.
In Ray v. Cingular Wireless, LLC, No. B195981, 2007 WL 4100136 (Cal. Ct. App. Nov. 19, 2007), Ray entered into an agreement with AT&T Wireless to sell cellular service in two Central California counties. Ray also entered into an agreement with All American, an AT&T Wireless distributor, to sell cellular services in Los Angeles County. Later, LA Tel acquired All American, and Cingular acquired AT&T Wireless... Full Story
Discovery Limitations and Presumption Against Attorney Representation Render Employment Arbitration Agreement Unconscionable
LeBlanc v. White Memorial Medical Center, No. B195611, 2007 WL 4126948 (Cal. Ct. App.2d Nov. 21, 2007)
11/21/2007
A California appellate court held that an employment arbitration agreement was unconscionable based on its discovery limitations, time limits for initiating arbitration, and its presumption against attorney representation.
In LeBlanc v. White Memorial Medical Center, No. B195611, 2007 WL 4126948 (Cal. Ct. App.2d Nov. 21, 2007), Patricia LeBlanc was employed at White Memorial as a nurse. She signed an arbitration agreement as part of her employment agreement. Subsequent to her resignation, LeBlanc filed suit alleging that she had been constructively terminated. White Memorial moved to compel arbitration... Full Story
Florida Supreme Court Drops Bar Membership Requirement for Court Appointed Mediators
In re Petition of Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, No. SC05-998, 2007 WL 3376904 (Fla. Nov. 15, 2007)
11/15/2007
The Florida Supreme Court, upon the recommendation of its Committee on Alternative Dispute Resolution Rules and Policy, has amended its Rules of Civil Procedure to remove the Bar membership requirement for court appointed mediators.
In In re Petition of Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, No. SC05-998, 2007 WL 3376904 (Fla. Nov. 15, 2007), the Florida Supreme Court considered amendments to the Florida Rules of Civil Procedure proposed by its Committee on Alternative Dispute Resolution Rules and Policy (ADR Committee) that would eliminate Florida Bar membership as a prerequisite for serving as a court appointed mediator... Full Story
Non-Signatory May Not Compel Arbitration Where Excluded by Arbitration Agreement
Qualcomm Inc. v. American Wireless License Group, LLC, Nos. 2005-IA-01827-SCT, 2005-IA-01894-SCT, 2005-IA-01829-SCT, 2005-IA-01995-SCT, 2005-IA-01841-SCT, 2005-IA-01883-SCT, 2005-CA-01895-SCT, 2007 WL 3378563 (Miss. Nov. 15, 2007)
11/15/2007
The Supreme Court of Mississippi held that non-signatories to a contract had no right to compel arbitration where the plain language of the arbitration agreement extended the agreement only to the contract's signatories.
In Qualcomm Inc. v. American Wireless License Group, LLC, Nos. 2005-IA-01827-SCT, 2005-IA-01894-SCT, 2005-IA-01829-SCT, 2005-IA-01995-SCT, 2005-IA-01841-SCT, 2005-IA-01883-SCT, 2005-CA-01895-SCT, 2007 WL 3378563 (Miss. Nov. 15, 2007), Leap Wireless transferred shares to American Wireless pursuant to a contract that contained an arbitration agreement. Years prior to the transfer, Leap had been a subsidiary of Qualcomm, although American Wireless alleged that Qualcomm still exercised control over Leap Wireless during the time of the transfer... Full Story
ADR Legislation & Regulation
LEGISLATION
NJ A 4494
SPONSOR: Panter [D]
TITLE: Owners Rights
PREFILED: 11/08/2007
INTRODUCED: 11/19/2007
DISPOSITION: Pending
LOCATION: Assembly Housing and Local Government Committee
Commentary:
Enacts the Owners' Rights in Common Interest Developments Act to provide protections of the rights of owners living in common interest communities. As it relates to dispute resolution, the bill would require the establishment of "a uniform, low cost, fair, and efficient system for resolving certain disputes or providing assistance regarding board actions which impact all owners similarly within a common interest community be implemented by the State, to be established within agencies or bureaus currently established and equipped for providing such assistance."
WI S 343
AUTHOR: Hansen [D]
TITLE: Cable and Satellite Television System Operators
INTRODUCED: 11/28/2007
DISPOSITION: Pending
LOCATION: Senate Commerce, Utilities and Rail Committee
Commentary:
This bill allows a person who creates video programming for cable or satellite television systems (video programmer) to seek arbitration if that video programmer believes that a cable or satellite television system operator has not treated the video programmer in a fair, reasonable, and nondiscriminatory manner concerning the proposed amount to be paid for the addition or renewal of a video channel to the cable or satellite operator's television system.
REGULATION
Alabama AAC 482-1-100
AGENCY: Department of Insurance
TITLE: Requirement for Annual Audited Financial Reports
PROPOSED: 11/05/2007
Commentary: Relates to annual audited financial reports by insurance companies. As it pertains to ADR, the regulation states that a qualified independent certified public accountant may enter into an agreement with an insurer to have disputes relating to an audit resolved by mediation or arbitration. However, in the event of a delinquency proceeding commenced against the insurer, the mediation or arbitration provisions shall operate at the option of the statutory successor.
California Title 3 CCR, Division 4, Chapter 5, Subchapter 3, Article 2, Sec(s) 3867
AGENCY: Department of Food and Agriculture
TITLE: Labeling of Seed Containers
PROPOSED: 11/23/2007
Commentary: This regulation would amend seed container labeling rules. As it relates to ADR, the regulation would establish methods and procedures for the mandatory conciliation or mediation or arbitration of disputes, as a prerequisite to pursuing other dispute resolution mechanisms, between labelers and any persons concerning the conformance with label statements or advertisements and representations of quality or performance, or causing crop loss due to disease.
Maine 12-150-105, 101
AGENCY: Department of Labor/Bureau of Rehabilitation Services/Division for the Blind and Visually Impaired
TITLE: Independent Living, Vocation Rehabilitation Services
PROPOSED: 07/18/2007
ADOPTED: 10/31/2007
Commentary: Amends rules relating to independent living services for individuals who are blind or visually impaired and vocational rehabilitation services for individuals who are blind or visually impaired. The specific mediation process is outlined in detail, including request of mediation, costs, and confidentiality.
New Hampshire 2007-192
AGENCY: Board of Marital Mediator Certification
TITLE: Certified Marital Mediator Training Programs
PROPOSED: 11/20/2007
CITATION: Mar 700
Commentary: Outlines procedures for a marital mediator training program.
Ohio OAC 4901:1-7-01 thru -14
AGENCY: Public Utilities Commission/Utilities Department
TITLE: Carrier-To-Carrier Services
PROPOSED: 09/05/2007
ADOPTED: 11/19/2007
Commentary: Relating to telephone utilities. Would provide for arbitration of interconnection agreements and mediation for carrier-to-carrier disputes.
Ohio OAC 4901:1-7-15 thru -29
AGENCY: Public Utilities Commission/Utilities Department
TITLE: Carrier-To-Carrier Services
PROPOSED: 09/05/2007
ADOPTED: 11/19/2007
Commentary: Relates to telephone utilities. Provides for arbitration of unbundled network rates, terms and conditions.
Texas 32 TEXREG 6492
AGENCY: Department of Housing and Community Affairs
TITLE: Manufactured Housing
PROPOSED: 09/06/2007
ADOPTED: 11/16/2007
CITATION: 10 TAC 1.80.F.80.70 -.73
Commentary: Establishes enforcement guidelines for manufactured housing rules. The dispute resolution section would be amended to allow the Department to offer, at no charge, alternative dispute resolution to resolve any claim or dispute. Depending on the parties, this may involve informal meetings or non-binding mediation.
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