Federal Cases
Supplemental Judgment Was Proper Means of Giving Effect to Previously Confirmed Arbitration Award
Robert Lewis Rosen Associates, Ltd. v. Webb, No. 05-3578-CV, 2007 WL 79448 (2d Cir. Jan. 11, 2007)
1/11/2007
The Sixth Circuit Court of Appeals held that a district court properly issued supplemental judgment on an arbitration award that was fully confirmed eighteen months earlier because the supplemental judgment corrected an omission from the original judgment.
In Robert Lewis Rosen Associates, Ltd. v. Webb, No. 05-3578-CV, 2007 WL 79448 (2d Cir. Jan. 11, 2007), Webb, a director of televised sporting events, hired Robert Lewis Rosen Associates (RLR), an entertainment agency, to serve as his personal manager and career advisor. The parties' contract required Webb to pay 10 percent of his compensation to RLR in exchange for its management services... Full Story
Sixth Circuit Affirms Sanctions Against Attorney Who Disregarded Order to Arbitrate
Legair v. Circuit City Stores, Inc., Nos. 05-4179, 06-3361, 2007 WL 98085 (6th Cir. Jan. 12, 2007)
1/12/2007
The Sixth Circuit Court of Appeals affirmed a district court order imposing sanctions on an attorney who disregarded an order to arbitrate. This decision continues the recent trend of cases reminding litigants that frivolous arbitration challenges are subject to sanctions.
In Legair v. Circuit City Stores, Inc., Nos. 05-4179, 06-3361, 2007 WL 98085 (6th Cir. Jan. 12, 2007), Legair sued Circuit City, his former employer, for alleged race discrimination.
Circuit City filed a motion to compel arbitration pursuant to an arbitration policy that was implemented during Legair's employment. The district court initially reserved its ruling but granted the motion after the Sixth Circuit upheld the same arbitration agreement in a separate case. See Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003)... Full Story
Fifth Circuit Upholds Finality of Arbitration by Rejecting Nondisclosure of Trivial Relationships As a Basis for Vacatur
Positive Software Solutions, Inc. v. New Century Mortgage Corp., No. 04-11432, 2007 WL 111343 (5th Cir. Jan. 18, 2007)
1/18/2007
In an en banc decision, an 11-5 majority of the Fifth Circuit Court of Appeals held that an arbitrator's nondisclosure of a trivial business relationship between the arbitrator and a party to the proceeding is not a proper basis for vacating an award.
In Positive Software Solutions, Inc. v. New Century Mortgage Corp., No. 04-11432, 2007 WL 111343 (5th Cir. Jan. 18, 2007), Positive Software Solutions (Positive Software) and New Century Mortgage (New Century) submitted a software licensing dispute to arbitration. Following a seven-day hearing, the arbitrator, Peter Shurn, issued an award in favor of New Century... Full Story
Silence in Response to a Conditional Arbitration Demand Does Not Constitute Waiver
In re Lapekas, No. 04-56795, 2007 WL 816585 (9th Cir. Jan. 10, 2007)
1/10/2007
The Ninth Circuit Court of Appeals held that an insurer's silence in response to a conditional demand for arbitration did not constitute waiver.
In In re Lapekas, No. 04-56795, 2007 WL 816585 (9th Cir. Jan. 10, 2007), Lapekas argued that her insurer, United Services Automobile Association (USAA), impliedly waived its right to arbitration... Full Story
Ninth Circuit Holds That Courts Cannot Consider Limitations on Liability When Deciding Enforceability of Arbitration Agreement
Net Global Marketing, Inc. v. Dialtone, Inc., No. 04-56685, 2007 WL 57556 (9th Cir. Jan. 9, 2007)
1/9/2007
In affirming a district court order finding that an arbitration agreement was unconscionable and therefore unenforceable, the Ninth Circuit Court of Appeals held that a limitation on liability in the underlying contract was not a proper consideration in deciding the enforceability of the contract's arbitration clause.
In Net Global Marketing, Inc. v. Dialtone, Inc., No. 04-56685, 2007 WL 57556 (9th Cir. Jan. 9, 2007), the district court denied Dialtone's motion to compel arbitration on the ground that the arbitration agreement was unconscionable and therefore unenforceable... Full Story
Court Strikes Down Bar on Class-Wide Proceedings Despite Absence of Procedural Unconscionability
Riensche v. Cingular Wireless, LLC, No. C06-1325Z, 2006 WL 3827477 (W.D. Wash. Dec. 27, 2006)
12/27/2006
A federal district court in Washington found that a bar on class-wide proceedings rendered an arbitration agreement substantively unconscionable, which is sufficient to render an agreement unenforceable under Washington law regardless of where there is any procedural unconscionability.
In Riensche v. Cingular Wireless, LLC, No. C06-1325Z, 2006 WL 3827477 (W.D. Wash. Dec. 27, 2006), Riensche brought a putative class action against Cingular, his wireless service provider, claiming that Cingular had collected improper surcharges. Cingular filed a motion to compel arbitration based on an arbitration clause in Riensche's service agreement. In opposing the motion, Riensche argued that the arbitration agreement was unconscionable and therefore unenforceable... Full Story
Federal Court Says Arbitration Agreement in Employee Dispute Is Valid, Even When "Original" Agreement Not Filed Until After Employment Began
Morgan v. Countrywide Home Loans, Inc., No. C 06-04766 SI, 2007 WL 80726 (N.D. Cal. Jan. 8, 2007)
1/8/2007
A federal district court in California granted an employer's request to compel arbitration, even though the "original" agreement to arbitrate was not signed by the employee until nearly six months after employment began.
In Morgan v. Countrywide Home Loans, Inc., No. C 06-04766 SI, 2007 WL 80726 (N.D. Cal. Jan. 8, 2007), Morgan claimed that no valid arbitration agreement existed between he and his employer, Countrywide, because requests by Countrywide for an original signed copy of an arbitration agreement evidenced fraud and coercion... Full Story
Federal Court Refuses to Compel Arbitration Under Expired Employment Agreement
Cornell v. Harmony Homes, Inc., No. 06-cv-00323-EWN-MEH, 2007 WL 38132 (D. Colo. Jan. 04, 2007)
1/4/2007
A Colorado Federal Court refused to compel arbitration under an expired employment agreement.
In Cornell v. Harmony Homes, Inc., No. 06-cv-00323-EWN-MEH, 2007 WL 38132 (D. Colo. Jan. 04, 2007), Cornell was employed with Harmony Homes, beginning in 2001. In 2002, she signed an employment agreement with an end date specified as "December" but lacking a year to define the term. The agreement contained an arbitration clause... Full Story
Employee Separation Agreement Supersedes Previous Dispute Resolution Policy
Liebl v. Mercury Interactive Corp., No. CIV A 06 C 5364, 2006 WL 3626764 (N.D. Ill. Dec. 12, 2006)
12/12/2006
An employee's Separation Agreement supersedes and replaces an earlier Dispute Resolution policy, where the Separation Agreement satisfies the Dispute Resolution Policy's explicit modification requirements, according to the Northern District of Illinois.
In Liebl v. Mercury Interactive Corp., No. CIV A 06 C 5364, 2006 WL 3626764 (N.D. Ill. Dec. 12, 2006), Liebl was terminated from his position at Mercury Interactive Corporation (MIC) and sued for damages arising from MIC's alleged refusal to allow him to exercise stock options. MIC moved to stay proceedings pending arbitration, which was provided for in a Dispute Resolution Policy... Full Story
Court Orders Arbitration Despite Missing Arbitration Agreement
JPMorgan Chase Bank, N.A. v. Lott, No. 5:06CV102KS-MTP, 2007 WL 30271 (S.D. Miss. Jan. 3, 2007)
1/3/2007
A federal district court in Mississippi ordered arbitration even though the applicable arbitration agreement was missing because uncontested testimony indicated that the moving party always requires an arbitration agreement for such transactions.
In JPMorgan Chase Bank, N.A. v. Lott, No. 5:06CV102KS-MTP, 2007 WL 30271 (S.D. Miss. Jan. 3, 2007), Lott bought a vehicle from Thames Autoplex (Thames) on an installment plan. The contract was later assigned to Chase Bank (Chase)... Full Story
Non-Signatory Not Allowed to Intervene in Action to Enforce Arbitration Agreement
Twist v. Arbusto, No. 4:05-cv-0187-JDT-WGH, 2007 WL 30556 (S.D. Ind. Jan. 3, 2007)
1/3/2007
An Indiana federal court held that a non-signatory could not intervene in an action to enforce an arbitration agreement where the Court had already ruled on the signatory's right to demand arbitration, and the non-signatory's right to demand arbitration raised distinct legal issues.
In Twist v. Arbusto, No. 4:05-cv-0187-JDT-WGH, 2007 WL 30556 (S.D. Ind. Jan. 3, 2007), Arbusto and several other investors (the Investors) sued Twist in a California state court, alleging that Twist had sold them fraudulent oil and gas investments. The Investors also sued the Pedley, Twist's attorney, for his alleged role in the fraudulent scheme... Full Story
Signatory May Not Compel Nonsignatory to Arbitrate When Its Claims Are Unrelated to the Agreement Containing the Arbitration Clause
D.C.D. Co., LLC v. Bank of America, N.A., No. 04-72944, 2007 WL 45935 (E.D. Mich. Jan. 5, 2007)
1/5/2007
A signatory to a contract containing an arbitration clause may only compel a nonsignatory to arbitrate when the nonsignatory's claims reference or rely on the contract containing an arbitration clause, a federal court in Michigan held.
In D.C.D. Co., LLC v. Bank of America, N.A., No. 04-72944, 2007 WL 45935 (E.D. Mich. Jan. 5, 2007), Detroit City Dairy (Dairy) and Bank of America entered into an agreement regarding forward contract currency trades. This agreement contained an arbitration provision. Bank of America also allowed D.C.D., an entity distinct from Dairy, to conduct trades under the agreement... Full Story
Continued Employment Constitutes Assent to Arbitration Agreement
Johns v. Sterling Jewelers, Inc., No. 06-14327, 2006 WL 3759905 (E.D. Mich. Dec. 20, 2006)
12/20/2006
In ordering arbitration of an employment dispute, a federal district court in Michigan found that the employee assented to the arbitration agreement by continuing her employment.
In Johns v. Sterling Jewelers, Inc., No. 06-14327, 2006 WL 3759905 (E.D. Mich. Dec. 20, 2006), Johns sued Sterling, her former employer, for alleged violations of the Family Medial Leave Act. Sterling argue that Johns' claims were subject to arbitration and filed a motion for a stay... Full Story
Post-Injury Arbitration Agreement Not Within FAA Exception for Seaman Contracts
Barbieri v. K-Sea Transportation Corp., No. 1:05-cv-04950-EVN-MDG, 2006 WL 3751215 (E.D.N.Y. Dec. 19, 2006)
12/19/2006
A New York federal court held that a seaman's post-injury arbitration agreement did not fall within the FAA's exception for "contracts of employment of seamen," but that the agreement could still be deemed unenforceable on other grounds.
In Barbieri v. K-Sea Transportation Corp., No. 1:05-cv-04950-EVN-MDG, 2006 WL 3751215 (E.D.N.Y. Dec. 19, 2006), Barbieri was badly injured in 2003 during his stint as captain of a petroleum barge. He was unable to work following his injury and agreed to sign a post-dispute arbitration agreement with K-Sea, his employer, in exchange for his average two-thirds net weekly wages as an advance against settlement of the claim. K-Sea ceased making these payments in early 2005, and Barbieri filed suit for additional damages... Full Story
Court Bypasses Question of Whether Filing for NASD Arbitration in New York Constitutes Submission to Personal Jurisdiction in New York and Transfers Case
Credit Suisse Securities (USA) LLC v. Hilliard, No. 06 Civ.1993(MGC), 2007 WL 14555 (S.D.N.Y. Jan. 3, 2007)
1/3/2007
A United States District Court for the Southern District of New York granted a party's motion to transfer a breach of contract action to Nebraska and did not decide whether filing an arbitration claim in New York constitutes submission to personal jurisdiction in New York when the arbitration organization requires that all claims be submitted to the New York office.
In Credit Suisse Securities (USA) LLC v. Hilliard, No. 06 Civ.1993(MGC), 2007 WL 14555 (S.D.N.Y. Jan. 3, 2007), Credit Suisse brought an action against Hilliard for breach of contract, and Hilliard petitioned the court to dismiss the action for lack of personal jurisdiction or, alternatively, to transfer the action for the United States District Court for the District of Nebraska... Full Story
New York Federal Court Holds Arbitrator's Indirect Financial Interest Does Not Constitute Evident Partiality
Transportes Coal Sea de Venezuela v. SMT Shipmanagement & Transport Ltd., No. 05-CV-9029 (KMK), 2007 WL 62715 (S.D.N.Y. Jan. 9, 2007)
1/9/2007
Mere appearance that an arbitrator has an indirect financial interest in the outcome of the arbitration does not establish grounds to vacate the award for evident partiality, the United States District Court for the Southern District of New York held.
In Transportes Coal Sea de Venezuela v. SMT Shipmanagement & Transport Ltd., No. 05-CV-9029 (KMK), 2007 WL 62715 (S.D.N.Y. Jan. 9, 2007), Transportes Coal (TCS) and SMT disputed over liability for a sunken barge. The parties submitted the dispute to a panel of three arbitrators, which found in favor of SMT... Full Story
U.S. District Court Rejects Evident Partiality Argument to Vacate Arbitration Award
Wizard v. Clipper Cruise Lines, No. 06 Civ.2074(GEL), 2007 WL 29232 (S.D.N.Y. Jan. 03, 2007)
1/3/2007
The United States District Court for the Southern District of New York held that small talk between an arbitrator and one of the parties to the arbitration did not demonstrate that the arbitrator acted with evident partiality.
In Wizard v. Clipper Cruise Lines, No. 06 Civ.2074(GEL), 2007 WL 29232 (S.D.N.Y. Jan. 03, 2007), Travel Wizard, a travel agency, contracted with Clipper, a cruise line, for the lease of cabins... Full Story
Arbitration Agreement Effective Only After Mutual Agreement to Mediate
Perdue Farms, Inc. v. Design Build Contracting Corp., No. 3:06CV245, 2007 WL 87667 (W.D.N.C. Jan. 9, 2007)
1/9/2007
A federal court in North Carolina construed an arbitration clause in a construction contract as not requiring arbitration unless the parties agreed to mediate their dispute.
In Perdue Farms, Inc. v. Design Build Contracting Corp., No. 3:06CV245, 2007 WL 87667 (W.D.N.C. Jan. 9, 2007), Perdue and Design entered into a construction contract. The parties made modifications to the arbitration and mediation provisions in the preprinted contract. When Perdue sued for breach of contract, Design moved to compel arbitration... Full Story
Detailed Arbitration Agreement Requires Initiating Party to File Demand for Arbitration, Even If Party Not Claimant in Dispute
Akbar v. American General Finance Corp., No. 3:06-CV-314, 2006 WL 3742215 (S.D. Ohio Dec. 15, 2006)
12/15/2006
An Ohio federal court construed an arbitration agreement as requiring the party who is seeking arbitration to initiate the arbitration even if the party is not the claimant in the dispute.
In Akbar v. American General Finance Corp., No. 3:06-CV-314, 2006 WL 3742215 (S.D. Ohio Dec. 15, 2006), Akbar obtained a loan from American General. Akbar rescinded the loan and later brought suit against American General in state court, claiming violations of the Truth in Lending Act. American General removed the dispute to federal court and moved to compel arbitration pursuant to the arbitration agreement contained within the parties' contract... Full Story
Exhaustion of Administrative Remedies Not Necessary for Arbitration of Title VII Claim
CACI Premier Technology, Inc. v. Faraci, No.1:06cv991, 2006 WL 3692615 (E.D. Va. Dec. 12, 2006)
12/16/2006
While a litigant alleging sex discrimination under Title VII of the Civil Rights Act of 1964 generally must exhaust all administrative remedies prior to bringing suit, there is no like requirement for an employee pursuing Title VII claims through binding arbitration.
In CACI Premier Technology, Inc. v. Faraci, No.1:06cv991, 2006 WL 3692615 (E.D. Va. Dec. 12, 2006), Faraci was hired by CACI in March 2004 to work in Germany as an Intelligence Analyst. Following several unwanted sexual advances and other misconduct by Cornelius, her supervisor, Faraci was transferred to a position for which she not qualified, and was subsequently terminated... Full Story
State Cases
California Courts Are Split on Whether Opt-Out Provision with Delayed Consequences Ensures Enforceability of Class Action Waiver
Firchow v. Citibank (South Dakota), N.A., No. B187081, 2007 WL 64763 (Cal. Ct. App. Jan. 10, 2007)
1/10/2007
In ruling that a bar on class-wide proceedings rendered an arbitration agreement unenforceable, the California Court of Appeal held that an opt-out provision did not preclude a finding of procedural unconscionability because exercise of the opt-out provision would necessarily result in delayed termination of the underlying relationship. The Court's holding creates a split of authority within the California courts of appeal because in Jones v. Citigroup, Inc., 38 Cal. Rptr. 3d 461 (Cal. Ct. App. 2006), review granted 135 P.3d 2 (Cal. 2006), the court held that an identical opt-out provision precluded a finding of procedural unconscionability.
In Firchow v. Citibank (South Dakota), N.A., No. B187081, 2007 WL 64763 (Cal. Ct. App. Jan. 10, 2007), Firchow brought a putative statewide class action against Citibank, alleging that Citibank had prematurely terminated a credit card rebate program in violation of California consumer protection statutes... Full Story
Individual Members of Group Health Plan Are Entitled to Arbitration Disclosures Required by California Law
Medeiros v. Superior Court, No. B193042, 2007 WL 93170 (Cal. Ct. App. Jan. 16, 2007)
1/16/2007
In construing a California statute that imposes disclosure requirements on arbitration clauses in health care plans, the California Court of Appeals held that an individual member of a group health plan is entitled to the requisite disclosures.
In Medeiros v. Superior Court, No. B193042, 2007 WL 93170 (Cal. Ct. App. Jan. 16, 2007), Health Net and San Bernardino County (the County) entered into a group service agreement whereby Health Net would provide health insurance to County employees. The group service agreement contained an arbitration clause.
Medeiros, a County employee, chose Health Net coverage using the County's benefits election form, which made passing reference to the arbitration clause in the group service agreement... Full Story
California Court Severs Reduced Limitations Period from Arbitration Agreement
Browning v. Dunmore Development Co., No. C050552, C050945, 2006 WL 3760036, (Cal. Ct. App. Dec. 22, 2006)
12/22/2006
The California Court of Appeals found that a reduced limitations period in a homebuilder's arbitration agreement was substantively unconscionable, but instead of invalidating the agreement, the Court severed the offending provision.
In Browning v. Dunmore Development Co., No. C050552, C050945, 2006 WL 3760036, (Cal. Ct. App. Dec. 22, 2006), Browning bought a home from Dunmore and later sued for allegedly defective construction. Dunmore moved to compel arbitration pursuant to an arbitration clause in the warranty agreement. The trial court denied the motion on the basis that the arbitration agreement was unconscionable and therefore unenforceable... Full Story
Florida Court Rules That Bar on Class-Wide Proceedings Is Unenforceable
Reuter v. Davis, No. 502001CA001164XXXXMB, 2006 WL 3743016 (Fla. Cir. Ct. Dec. 12, 2006)
12/12/2006
In a suit against a payday lender, a Florida trial court ruled that a bar on class-wide proceedings was unconscionable and therefore unenforceable. However, instead of invalidating the arbitration agreement, the Court severed the offending provision and ordered arbitration.
In Reuter v. Davis, No. 502001CA001164XXXXMB, 2006 WL 3743016 (Fla. Cir. Ct. Dec. 12, 2006), Reuter sued payday lender Check 'N Go for allegedly violating Florida's usury laws and two consumer protection statutes... Full Story
Mediation Required Prior to Bringing Lawsuit in Iowa Farm Disputes
Klinge v. Bentien, No. 04-0843, 2006 WL 3691183 (Iowa Dec. 15, 2006)
12/15/2006
Under recently amended Iowa law, mediation is a "jurisdictional prerequisite" to filing a civil action in a dispute between a "farm resident" and "other person," relating to a "care and feeding contract," according to the Supreme Court of Iowa.
In Klinge v. Bentien, No. 04-0843, 2006 WL 3691183 (Iowa Dec. 15, 2006), Bentien agreed to purchase feeder pigs from Klinge and care for them until they grew to market weight. Unfortunately, 100 of the pigs died under Klinge's care. Klinge sued Bentien in small claims court for money owed under their contract, and Bentien brought a counterclaim for negligence... Full Story
Arbitration Agreement Excluding Collection Disputes from Arbitration Is Not Unconscionable, Oregon Court Holds
DEX Media, Inc. v. National Management Services, Inc., No. 0402-01435; A128010, 2007 WL 10448 (Or. App. Jan. 3, 2007)
1/3/2007
Under Colorado law, an arbitration agreement that excludes collection disputes is not necessarily unconscionable for lack of mutuality, an Oregon state court held.
In DEX Media, Inc. v. National Management Services, Inc., No. 0402-01435; A128010, 2007 WL 10448 (Or. App. Jan. 3, 2007), DEX, a publisher of telephone directories, entered into an agreement with NMS, which solicits and sells advertising... Full Story
Texas Courts Split Over Appealability of Orders Vacating Arbitration Awards and Directing a Rehearing
Werline v. East Texas Salt Water Disposal Co., No. 06-06-0039-CV, 2006 WL 3715907 (Tex. App. Dec. 18, 2006)
12/18/2006
A recent ruling by the Sixth District Court of Appeals of Texas has created a split in that state over whether or not an appeals court has jurisdiction to review a trial court order vacating an award while a rehearing on the matter is still pending.
In Werline v. East Texas Salt Water Disposal Co., No. 06-06-0039-CV, 2006 WL 3715907 (Tex. App. Dec. 18, 2006), Werline prevailed in arbitration against his former employer in a breach of contract dispute. The trial court, however, denied Werline's motion to confirm and ordered a rehearing after vacating the arbitration award... Full Story
ADR Legislation & Regulation
FEDERAL LEGISLATION
United States House Bill 371 (Introduced 1/10/2007)
Allows the Secretary to initiate binding arbitration proceedings through the Federal Mediation and Conciliation Service after a finding that an alien agricultural worker has filed a complaint and was terminated from employment without just cause.
STATE LEGISLATION
Connecticut House Bill 5684 (Introduced 1/17/2007)
Provides that a person commencing a civil action alleging, without probable cause, that another person has failed to arbitrate or mediate in good faith shall pay a $5,000 penalty.
Connecticut Senate Bill 615 (Introduced 1/18/2007)
Authorizes individuals to serve as mediators in a land dispute after completing a course of study and achieving certification by an accredited organization approved by the Judicial Branch.
District of Columbia Legislative Bill 50 (Introduced 1/9/2007)
Enacts the Revised Uniform Arbitration Act in the District of Columbia.
Florida House Bill 311 (Introduced 1/17/2007)
Permits clauses in wills, other than the validity of all or part of the will, to be subject to arbitration.
Hawaii House Bill 90 (Introduced 1/18/2007)
Enacts a new Article of insurance law "to establish a framework for insurance division market conduct actions." Allows for the establishment of a dispute resolution or arbitration mechanism to resolve conflicts with insurers regarding examination costs and fees.
Hawaii Senate Bill 202 (Introduced 1/19/2007)
Relates to medical tort reform; limits recoverable damages and provides for arbitration in medical services contracts.
Indiana House Bill 1325 (Introduced 1/16/2007)
Relating to homeowners' associations, this bill would require the governing documents to provide for final and binding arbitration of disputes concerning administration of the association and interpretation of the governing documents.
Minnesota SB 119 (Introduced 1/17/2007)
Provides that, in relation to no-fault auto insurance, no reparation obligor shall terminate basic economic loss benefits or deny a claim by an insured for basic economic loss benefits unless this action is taken based on an award obtained in an arbitration proceeding, as provided for by Minnesota law.
Nebraska Legislative Bill 475 (Introduced 1/17/2007)
Establishes an Equal Opportunity Commission to deal with discrimination based on sexual orientation or marital status. Encourages use of arbitration, mediation, and other ADR methods by the commission in achieving its objectives.
Nebraska Legislative Bill 606 (Introduced 1/17/2007)
Provides for court referral to mediation or some other form of ADR in civil cases, and authorizing the Supreme Court to establish rules of practice governing referral of cases to mediation.
New Jersey Assembly Bill 3922 (Introduced 1/18/2007)
Creates a "New Homebuyer Bill of Rights," requiring, among other things, a "brief and plain language explanation" of laws and regulations affecting new homebuilders, and a description of the new homebuyer's rights and responsibilities in arbitration.
New Mexico House Bill 183 (Introduced 1/17/2007)
Redefines the "practice of law," including representation of a party in a quasi-judicial proceeding, such as arbitration or mediation, for purposes of establishing the "unauthorized practice of law."
New Mexico House Bill 184 (Introduced 1/17/2007)
Enacts the Uniform Revised Limited Partnership Act, and allows for the resolution of disputes related to the "winding up" of a partnership through mediation or arbitration.
New Mexico House Bill 192 (Introduced 1/18/2007)
Named the "Mediation Procedures Act," the bill establishes confidentiality for mediation communications and provides exceptions for disclosure of mediation communications.
New York Assembly Bill 1733 (Introduced 1/10/2007)
Establishes a Land Use Mediation Program, relating to real property actions and proceedings law.
Oklahoma House Bill 1296 (Introduced 1/17/2007) (see also Senate Bill 755)
Amends existing law making any clause or understanding in a construction agreement that requires litigation, arbitration, or other dispute resolution proceeding to be conducted in another state void and unenforceable.
Oklahoma House Bill 1361 (Introduced 1/18/2007)
Creates Uniform Limited Partnership Act of 2007, providing for settlement of "winding up" disputes through mediation or arbitration.
Oklahoma House Bill 1547 (Introduced 1/19/2007) (see also Senate Bill 906)
Creates Interstate Compact for the Placement of Children, and provides for mediation and binding dispute resolution for disputes among compacting states.
Oklahoma House Bill 1886 (Introduced 1/22/2007) (see also Senate Bill 805)
Relating to tort reform, the bill makes several disclosure requirements in preparation for trial. However, a petition to enforce an arbitration award is exempted from many of these disclosure requirements.
Oklahoma House Bill 1961 (Introduced 1/22/2007)
In existing law relating to motor vehicle insurance, this bill clarifies which modifications or changes in status constitute "new coverage." The law allows uninsured motorist contract differences to be submitted to arbitration. If arbitration does not achieve a result within three (3) months, the insured may proceed with suing the tortfeasor.
Oklahoma Senate Bill 937 (Introduced 1/22/2007)
In connection with the "Fair Pay for Construction Act," the law would invalidate any provision in a construction contract requiring litigation or arbitration to take place in another state.
South Carolina House Bill 3294 (Introduced 1/17/2007)
With regards to licensure requirements in connection with deferred presentment services, the bill caps interest rates at 36% for deferred presentment or deposit of a check. It also prohibits the enforcement of unconscionable arbitration provisions, and outlines factors for determining unconscionability.
South Dakota House Bill 1054 (Introduced 1/9/2007)
A qualified independent certified public accountant (CPA) may have audit disputes with an insurer resolved through mediation or arbitration.
Texas House Bill 664 (Introduced 1/19/2007)
Relates to the adequacy of health maintenance organization (HMO) health care delivery networks and availability of preferred provider benefits. Provides for mandatory mediation, where an impartial consensus panel will facilitate a voluntary agreement between the party with regard to participation in a health care delivery network.
Utah House Bill 295 (Introduced 1/18/2007)
When a claim is brought by a named insured and is asserted against the covered person's uninsured motorist carrier, the claimant may elect to resolve the claim through binding arbitration or through litigation.
Utah Senate Bill 151 (Introduced 1/19/2007)
Deals with case management and the arrangement of the Administrative Office of the Courts. The bill encourages problem-solving techniques, including mediation, to increase efficiency.
Virginia House Bill 3104 (Introduced 1/18/2007)
Makes restrictions on loans to military servicemen and their dependents, including the following:
"Any creditor that makes a loan or extends credit to a covered service member or a dependent of a covered service member shall not, with respect to such credit…require the borrower to submit to arbitration or impose onerous legal notice provisions in the case of a dispute."
Washington House Bill 1461 (Introduced 1/19/2007)
Authorizes the attorney general to implement a dispute resolution program for handling disputes over manufactured/mobile home community registrations.
REGULATIONS
Arkansas Regulation 4577 (Adopted 9/8/2006)
The Board of Examiners in Counseling interprets the intent of the Legislature as providing for the licensure and regulation of Counselors and Marriage and Family Therapists. Includes "Mediation" as an area of specialization, as established by the Arkansas Commission for Mediation.
California Regulation 17342 (Adopted 12/29/2006)
Clarifies the Department of Insurance's mediation program for earthquake, homeowners, and automobile collision and physical damage claims. Defines "mediation" and establishes which claims should be referred to mediation.
Delaware Regulation 1978 (Adopted as Emergency Rule 1/10/2007)
In cases where a Managed Care Organization and health care provider cannot agree on an appropriate charge, the provider can petition the Department of Insurance for arbitration.
Delaware Regulation 1979 (Adopted as Emergency Rule 1/8/2007)
The purpose of this regulation is "to implement 18 Del. C. Sections 332, 6416 and 6417 which require health insurance carriers to establish a procedure for internal review of a carrier's adverse coverage determination and which require the Delaware Insurance Department to establish and administer procedures for arbitration and independent utilization review upon completion of the carrier's internal review process."
Louisiana Regulation 10774 (Proposed & Emergency Adoption 1/20/2007)
This regulation establishes a special mediation program for personal lines residential insurance claims resulting from Hurricanes Katrina and Rita. Creates procedures for notice of the right to mediation, request for mediation, assignment of mediators, payment for mediation, conduct of mediation, and guidelines for the quality repair of residential property damage; Extends the one year prescriptive period for claims of these types to two years.
New Hampshire Regulation 6539 (Proposed 1/11/2007)
Provides licensure requirements for regulation of the accounting profession. Also, the regulation outlines mediation procedures with licensees over alleged misconduct and other complaints.
New York Regulation 18541 (Adopted 12/6/2006)
The purpose of this regulation is "to provide a uniform, nondiscriminatory administrative complaint procedures for any person who believes that there is a violation of any provision of Title Three of the Federal Help America Vote Act of 2002 (HAVA)." The regulation organizes an arbitration panel to settle such disputes.
New York Regulation 18840 (Proposed 12/27/2006)
Requires insurers to issue no-fault denials with specific wording so that applicants will be notified of their right to seek special expedited arbitration, in order to determine the issue of which eligible insurer is designated for first party benefits.
New York Regulation 18841 (Proposed 12/27/2006)
Provides procedures for administering a special expedited arbitration procedure for disputes regarding the designation of the insurer for first party benefits (related to NY Regulation 18840).
New York Regulation 18893/18894 (Adopted 11/27/2006)
Similar to NY Regulation 18840, this regulation requires no-fault denials to contain specific wording putting applicants on notice that they qualify for expedited arbitration procedures.
Ohio Regulation 13197 (Adopted 12/28/2006)
This rule amplifies existing Ohio law, and defines certain "unconscionable terms in home mortgage loans." Among these are arbitration clauses that are unconscionable, have attorney fee shifting provisions, are not clearly and conspicuously disclosed to consumers, limit rights and remedies, further limit statute of limitations, require that the arbitral award remain confidential, or fail to provide an appeal process for a decision that is arbitrary, capricious, or contrary to law.
Ohio Regulation 13317 (Proposed 12/29/2006)
Defines as an "unfair trade practice" making known to claimants a policy of appealing from arbitration awards in claimants' failure, for the purpose of compelling them to accept settlements or compromises less than the amount awarded through arbitration.
Oregon Regulation 27957 (Adopted 12/15/2006)
Clarifies the rights of parties in arbitration related to the Public Utilities Commission. Negotiating parties may ask an outside mediator or arbitrator to settle the dispute. The Commission will use an ALJ as neutral, unless workload constraints require use of an outside neutral.
Oregon Regulation 28005 (Adopted 12/12/2006)
Mediation proceedings related to the Construction Contractors' Board are exempt from disclosure under the Public Records Law. Also, mediators may not disclose or be forced to disclose mediation communications, and if disclosed, such communications are inadmissible as evidence in any subsequent administrative, judicial, or arbitration proceeding unless all parties agree in writing or another exception applies. The regulation also clarifies broader dispute resolution procedures for breach of a construction contract.
Tennessee Regulation 9753 (Adopted 12/27/2006)
Amends rules regarding Medicare Supplement Insurance Minimum Standards, and provides for full disclosures in the sale of accident and sickness insurance coverage for persons eligible for Medicare. Also provides: "A Medicare Select issuer shall have and use procedures for hearing complaints and resolving Written grievances from the subscribers. The procedures shall be aimed at mutual agreement for settlement and may include arbitration procedures."
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