Federal Cases
Employee's Discrimination Claim Relied on Contract and Thus Came Within Scope of Arbitration Agreement
Panepucci v. Honigman Miller Schartz & Cohn LLP, No. 05-2579, 2008 WL 2467979 (6th Cir. June 18, 2008)
6/18/2008 12:00:00 AM
Discrimination claims are arbitrable in accordance with an arbitration agreement in an employment contract when the contract sets forth a method of compensation and the employee characterizes the failure to follow that method as evidence of discrimination, according to the Sixth Circuit Court of Appeals.
In Panepucci v. Honigman Miller Schartz & Cohn LLP, No. 05-2579, 2008 WL 2467979 (6th Cir. June 18, 2008), Panepucci was an equity partner attorney at the Honigman firm. After she was allegedly denied certain compensation, Panepucci sued Honigman for discrimination and retaliation. Honigman moved to compel arbitration in accordance with an agreement in the parties' partnership contract. The district court granted the motion, finding the claims arbitrable under the agreement, which required arbitration of any dispute "arising under or related to" the partnership contract... Full Story
Removal to Federal Court Does Not Constitute Waiver of the Right to Arbitrate
Martin v. Citibank, Inc., No. CIV. 07-2297(RCL), 2008 WL 2492068 (D.D.C. June 24, 2008)
6/24/2008 12:00:00 AM
A federal district court in the District of Columbia has held that merely petitioning a state court to remove a matter to federal court is not litigation behavior that constitutes a waiver of the right to arbitrate.
In Martin v. Citibank, Inc., No. CIV. 07-2297(RCL), 2008 WL 2492068 (D.D.C. June 24, 2008), Martin was employed by Citibank. During the course of employment, Citibank produced an employee handbook containing an arbitration agreement. The agreement was required as an "essential" condition of employment. Martin signed a form acknowledging the receipt of the employee handbook... Full Story
Procedural Safeguards Preclude Biased Arbitration Proceedings
Carboni v. Lake, No. 06 Civ. 15488(RJH), 2008 WL 2513914 (S.D. N.Y. June 20, 2008)
6/20/2008 12:00:00 AM
A New York district court rejected a party's contention that arbitration in a certain forum would be unfair. The complaint failed to show fraud, duress or unconscionability, and procedural safeguards exist to preclude a biased arbitration proceeding.
In Carboni v. Lake, No. 06 Civ. 15488(RJH), 2008 WL 2513914 (S.D. N.Y. June 20, 2008), Carboni filed an action against Lake for defamation and tortious interference with business relations. The Court determined that the dispute was subject to arbitration with the New York Mercantile Exchange (NYMEX). Full Story
North Carolina Federal Court Refuses Transfer of First-Filed Matter Back to Arizona, Citing Likely Denial of Appropriate Remedy in Ninth Circuit
Jefferson Pilot Life Ins. Co. v. Griffin, No. 1:07CV0096, 2008 WL 2485598 (M.D.N.C. June 16, 2008)
6/16/2008 12:00:00 AM
Despite the fact that a matter was first filed in an Arizona court, a North Carolina federal district court has refused to transfer a dispute over the enforcement of an employment-related arbitration agreement to Arizona, holding that Ninth Circuit precedent could deny the parties' bargained-for contractual remedy through arbitration.
In Jefferson Pilot Life Ins. Co. v. Griffin, No. 1:07CV0096, 2008 WL 2485598 (M.D.N.C. June 16, 2008), an employment-related dispute arose between Griffin and Jefferson Pilot. After his dismissal, Griffin filed suit in an Arizona state court. Jefferson Pilot removed the matter to an Arizona federal district court and moved to dismiss the matter due to the existence of a valid arbitration agreement between the parties that required arbitration of the claim in North Carolina... Full Story
Expanded Arbitral Review Avenue Remains Open after Hall Street
Redish v. Yellow Transp., Inc., No. 3-07-CV-1065-O, 2008 WL 2572658 (N.D. Tex. June 24, 2008)
6/24/2008 12:00:00 AM
A federal district court in Texas has held that parties may contract for expanded arbitral review of arbitration awards without running afoul of the United States Supreme Court's recent decision in Hall Street Assocs., LLC v. Mattel, Inc..
In Redish v. Yellow Transp., Inc., No. 3-07-CV-1065-O, 2008 WL 2572658 (N.D. Tex. June 24, 2008), Redish filed a federal employment discrimination suit against former employer Yellow. Yellow moved to dismiss the suit or stay litigation in favor of arbitration in accordance with an arbitration agreement between the parties... Full Story
State Cases
Unsigned Arbitration Award Will Only be Vacated if Prejudice is Demonstrated
Chau v. Martin, No. G038926, 2008 WL 2461806 (Cal. Ct. App. June 19, 2008)
6/19/2008 12:00:00 AM
A California appellate court determined that an arbitration award denying a realtor's claim for a real estate commission should be affirmed despite claims of improper conduct of the arbitrators.
In Chau v. Martin, No. G038926, 2008 WL 2461806 (Cal. Ct. App. June 19, 2008), Chau and Martin were commercial real estate brokers employed by Lee Industry. Chau signed an employment agreement that provided for arbitration of all disputes with other Lee employees... Full Story
Filing Lawsuit Instead of Arbitration not a Bar to Attorney Fees
Farina v. Wedbush, No. D050926, 2008 WL 2406824 (Cal. Ct. App.4d Jun. 16, 2008)
6/16/2008 12:00:00 AM
A California appellate court rejected an argument that an attorney was barred from recovering under a contract for attorney fees because the attorney breached the contract by filing a lawsuit instead of making an arbitration claim.
In Farina v. Wedbush, No. D050926, 2008 WL 2406824 (Cal. Ct. App.4d Jun. 16, 2008), Nannette Farina represented Edward and Jean Wedbush in a lawsuit regarding property owned by the Wedbushes. After she did not receive payment, Farina filed a lawsuit to recover fees, in spite of the parties' agreement to arbitrate disputes... Full Story
Employee's 'John Hancock' Not Needed for Arbitration Agreement to be Valid
Santos v. General Dynamics Aviation Svcs. Corp., No. 4D07-5067, 2008 WL 2512475 (Fla. Dist. Ct. App. June 25, 2008)
6/25/2008 12:00:00 AM
Under the Federal Arbitration Act (FAA), an agreement to arbitrate must be in writing, however, the FAA does not require that agreement to be signed by the parties. A Florida district appellate court upheld an employee's unsigned agreement to arbitrate based on the employee's conduct of continued employment.
In Santos v. General Dynamics Aviation Svcs. Corp., No. 4D07-5067, 2008 WL 2512475 (Fla. Dist. Ct. App. June 25, 2008), Santos was employed at General Dynamics Aviation Services, Corp. Thereafter, General Dynamics implemented a Dispute Resolution Policy (DRP), which stated that arbitration was the exclusive remedy for resolving employment disputes. The DRP stated that continuation of employment demonstrated acceptance of the DRP... Full Story
Idaho Supreme Court Denies Confirmation, Finding No Evidence of Effective Amendment Adding Arbitration Agreement
MBNA America Bank, N.A. v. McGoldrick, No. 34055, 2008 WL 2586304 (Idaho July 1, 2008)
7/1/2008 12:00:00 AM
The Idaho Supreme Court has reversed a district court order confirming an arbitration award, holding that the party seeking confirmation did not satisfy the burden of showing a valid agreement to arbitrate by exhibiting a contract containing a conditional right to modify and presenting an affidavit alleging that an arbitration agreement was validly added through notice to the consumer.
In MBNA America Bank, N.A. v. McGoldrick, No. 34055, 2008 WL 2586304 (Idaho July 1, 2008), McGoldrick opened a credit card account with MBNA. A billing dispute arose, and MBNA filed an arbitration claim against McGoldrick, ostensibly in accordance with an arbitration agreement between the parties that came into being through an amendment sent by MBNA to McGoldrick. An arbitration award was eventually entered in favor of MBNA. MBNA moved to confirm the award; McGoldrick moved to vacated it... Full Story
Court Cites Lack of Evidence of Compliance with Conditions on the Right to Modify a Credit Card Contract in Refusing to Find Agreement to Arbitrate
MBNA America Bank, N.A. v. Fouche, No. 34054, 2008 WL 2586403 (Idaho July 1, 2008)
7/1/2008 12:00:00 AM
The Idaho Supreme Court has held that a company cannot show a valid agreement to arbitrate through amendment when the contract conditions the right to amend and no evidence is presented as to whether the company complied with those conditions.
In MBNA America Bank, N.A. v. Fouche, No. 34054, 2008 WL 2586403 (Idaho July 1, 2008), Fouche acquired a credit card from MBNA. After Fouche allegedly failed to make payments on her account, MBNA filed a claim in arbitration. Fouche objected, claiming that no agreement to arbitrate existed between the parties. The arbitrator issued an award in favor of MBNA... Full Story
Building Contractor Who Fails to Bring Related Claim in "Appeal" From Non-Binding Arbitration Award is Barred From Bringing Claim in Second Suit
Booth v. Augis, No. 07-P-238, 2008 WL 2522587 (Mass. App. Ct. June 27, 2008)
6/27/2008 12:00:00 AM
A Massachusetts appellate court held that when a building contractor seeks de novo review of a non-binding arbitrator's decision, such an "appeal" resembles an original trial court action more than an ordinary appeal; thus, he must bring all claims related to the arbitration action in the appeal.
In Booth v. Augis, No. 07-P-238, 2008 WL 2522587 (Mass. App. Ct. June 27, 2008), Booth, a building contractor, submitted his dispute with homeowner Augis to the Massachusetts home improvement private arbitration program. The arbitrator issued a non-binding award in favor of Booth, but Booth was unhappy with the amount of the award and appealed for a trial de novo under MASS. GEN. LAWS ch. 142A, § 4 (Booth I)... Full Story
Statutory Deadline for Vacatur Inapplicable to Invalid Arbitration Award
Citibank v. Wood, No. 2007 CA 48, 2008 WL 2390851 (Ohio Ct. App. June 13, 2008)
6/13/2008 12:00:00 AM
An Ohio appellate court held that an arbitration award issued by a forum that is not agreed upon by the parties in their arbitration agreement is invalid ab initio, and thus statutory time limits for seeking vacatur of the award do not apply.
In Citibank v. Wood, No. 2007 CA 48, 2008 WL 2390851 (Ohio Ct. App. June 13, 2008), Wood and Citibank entered into a credit agreement that contained an arbitration clause. The clause provided that if a dispute arose between the parties, either party could elect to arbitrate the dispute using one of the following: the American Arbitration Association, JAMS, or the National Arbitration Forum... Full Story
Ohio Court Requires Strict Compliance with Time Requirement for Motion to Vacate Arbitration Award, Even Where Validity of Arbitration Agreement in Dispute
Internatl. Assn. of Heat & Frost Insulator & Asbestos Workers, Local Union No. 45 v. Quality Insulation, Inc., No. L-07-1374, 2008 WL 2468576 (Ohio Ct. App.6d June 20, 2008)
6/20/2008 12:00:00 AM
An Ohio appellate court held that the three month time limit to challenge an arbitration award applies even where the validity of arbitration agreement is called into question.
In Internatl. Assn. of Heat & Frost Insulator & Asbestos Workers, Local Union No. 45 v. Quality Insulation, Inc., No. L-07-1374, 2008 WL 2468576 (Ohio Ct. App.6d June 20, 2008), an arbitration award was issued on January 31, 2007 in favor of International in regarding to a dispute over a collective bargaining agreement... Full Story
Texas Supreme Court Rejects Mobile Home Dealer's Waiver Argument
In re Fleetwood Homes of Texas, L.P., No. 06-0943, 2008 WL 2487094 (Tex. June 20, 2008)
6/20/2008 12:00:00 AM
Limited litigation activity does not constitute an implied waiver of the right to arbitrate without the requisite showing of prejudice from that activity, according to the Texas Supreme Court.
In In re Fleetwood Homes of Texas, L.P., No. 06-0943, 2008 WL 2487094 (Tex. June 20, 2008), mobile home manufacturer Fleetwood entered into a dealership contract with Gulf. The contract contained an arbitration agreement encompassing any dispute between the parties. Fleetwood later cancelled the agreement, allegedly due to breach by Gulf. In response, Gulf filed a court action for breach. Fleetwood moved to compel arbitration. The motion was denied by the trial court, and the denial was affirmed by the intermediate court... Full Story
ADR Legislation & Regulation
LEGISLATION
CA A 2323
AUTHOR: Huff [R]
TITLE: Escrow Agents
DISPOSITION: To Governor
LOCATION: To enrollment
Commentary: Expands the Escrow Law relating to criminal background checks to include federal summary criminal history information from the Federal Bureau of Investigation and other related information. Requires arbitration of any dispute arising from the denial of a certificate under the law.
CA S 1432
AUTHOR: Margett [R]
TITLE: Contractors
DISPOSITION: To Governor
LOCATION: To Governor
Commentary: Amends the code regarding contractors. "SEC. 4. Section 116.220 of the Code of Civil Procedure is amended to read: 116.220. (a) The small claims court has jurisdiction in the following actions: 4) To confirm, correct, or vacate a fee arbitration award not exceeding five thousand dollars ($5,000) between an attorney and client that is binding or has become binding, or to conduct a hearing de novo between an attorney and client after nonbinding arbitration of a fee dispute involving no more than five thousand dollars ($5,000) in controversy, pursuant to Article 13 (commencing with Section 6200) of Chapter 4 of Division 3 of the Business and Professions Code."
HI S 2542
AUTHOR: Ige [D]
TITLE: Primary Care for Uninsured
DISPOSITION: Enacted
LOCATION: Governor's Veto Overridden
Commentary: Amends an act to ensure continued community based primary care for the uninsured, underinsured, or Medicaid recipients by helping the community health center system to remain financially viable and stable in the face of the increasing needs of these populations; relates to public health. While a 3/14/08 amendment removed any mention of arbitration, a 4/25/08 amendment added it back in to apply to disputes between "any federally qualified health center or rural health clinic" and the "department," which was not defined in the bill.
LA H 548
AUTHOR: Foil [R]
TITLE: Civil Procedure
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary: Provides for the continuous revision of the Code of Civil Procedure. Eliminates arbitration and award as an affirmative defense. They are to be pled as res judicata going forward.
LA S 329
AUTHOR: Adley [D]
TITLE: Sales Tax Review
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary: Regards tax proceedings, providing for arbitration (amongst other forms of adjudication) for determination of whether a tax regulation violates the requirement of uniformity. Also provides for the arbitration process.
MO H 1779
SPONSOR: Emery [R]
TITLE: Utility Services
DISPOSITION: Enacted
LOCATION: Signed by Governor
Commentary: Changes provisions relating to Voice Over Internet Protocol Service; amendments include: "4. Nothing in this chapter or in chapter 386, RSMo, is intended to alter the rights and obligations arising under federal law, including the interconnection and unbundling provisions of 47 U. S.C. Sections 251 and 252, irrespective of the type of technology being used by the requesting local exchange telecommunications company and whether the local exchange telecommunications company is providing telecommunications service or interconnected voice over Internet protocol service, as those terms are defined in chapter 386, RSMo, and the jurisdiction and authority of the commission to mediate and arbitrate disputes arising under said federal law provisions shall remain unaffected."
OH H 323
SPONSOR: Gibbs [R]
TITLE: Partition Fences
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary: Revises the Fences law. The bill outlines the arbitration procedure beginning with the requirement of a written request for arbitration and notice and ending with emphasizing the finality of the arbitrator's decision. Notably, the arbitrator's written decision must be given to both parties, with one copy to be certified and filed with the applicable county recorder.
RI H 7867
AUTHOR: Kennedy [D]
TITLE: Insurance Market Conduct Actions
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary: Creates "the Market Conduct Surveillance Act in order to establish a framework for insurance market conduct actions." Requires the establishment and utilization of "a dispute resolution or arbitration mechanism to resolve conflicts with insurers regarding examination costs and fees".
RI H 8150
AUTHOR: Fox [D]
TITLE: Fair Dealership
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary: Amends provisions of the Rhode Island fair dealership act, including the REPEAL of "6 50 6. Application to arbitration agreements. This chapter shall not apply to provisions for the binding arbitration of disputes contained in a dealership agreement, if the criteria for determining whether good cause existed for a termination, cancellation, nonrenewal or substantial change of competitive circumstances, and the relief provided is no less than that provided for in this chapter."
RI S 2592
AUTHOR: Connors [D]
TITLE: Fair Dealership Act
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary: Amends provisions of the Fair Dealership Act. Removes "or substantial change of competitive circumstances" as one of the reasons for an application to arbitrate disputes.
REGULATIONS
North Carolina 22: 09 NCR 786
AGENCY: Department of Environment and Natural Resources/Soil and Water Conservation Commission
TITLE: Agriculture Cost Share Program/Community Conservation
Commentary: Clarifies rules regarding the Agriculture Cost Share Program and the Community Conservation Assistance Program to improve efficiency and effectiveness in protecting water quality. The proposed regulation also provides for "binding mediation" to resolve disputes.
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