Federal Cases
Employee Cannot Intervene in EEOC Enforcement Lawsuit If Discrimination Claims Are Subject to Arbitration
EEOC v. Woodmen of the World Life Insurance Society, No. 06-1522, 2007 WL 702758 (8th Cir. Mar. 9, 2007)
3/9/2007
The Eighth Circuit Court of Appeals held that an employee could not intervene in an EEOC enforcement action where her discrimination claims were subject to arbitration. In reaching this holding, the Court explained that the employee was not giving up any substantive rights because intervening in an EEOC enforcement action is merely a procedural right.
In EEOC v. Woodmen of the World Life Insurance Society, No. 06-1522, 2007 WL 702758 (8th Cir. Mar. 9, 2007), Rollins, a former Woodmen employee, filed a motion to intervene in an EEOC enforcement action against Woodmen. Woodmen responded by filing a motion to compel arbitration pursuant to an arbitration agreement in Rollins' employment contract... Full Story
Court Finds That Arbitration Can Advance Policy Embodied by Antihazing Statute
Griffen v. Alpha Phi Alpha, Inc., No. 06-1735, 2007 WL 707364 (E.D. Pa. Mar. 2, 2007)
3/2/2007
In rejecting an unconscionability challenge to an arbitration agreement and ordering arbitration of a hazing claim against a fraternity, a federal court in Pennsylvania found that arbitration is capable of advancing the public policy embodied by Pennsylvania’s antihazing statute.
In Griffen v. Alpha Phi Alpha, Inc., No. 06-1735, 2007 WL 707364 (E.D. Pa. Mar. 2, 2007), Griffen, a student at the University of Pennsylvania, applied for membership in Alpha Phi Alpha (Alpha), a fraternity whose members have included Martin Luther King, Jr. and Thurgood Marshall... Full Story
Second Circuit Precedent Allows Courts to Grant Provisional Remedies When International Arbitration Is Pending
Bahrain Telecommunications Co. v. DiscoveryTel, Inc., No. 3:05cv1957, 2007 WL 715926 (D. Conn. Mar. 9, 2007)
3/9/2007
A Connecticut federal court relied on Second Circuit precedent in holding that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention) does not deprive courts of jurisdiction to grant provisional remedies where an international arbitration is pending. Accordingly, the Court allowed one of the parties to proceed with its motion for a provisional remedy.
In Bahrain Telecommunications Co. v. DiscoveryTel, Inc., No. 3:05cv1957, 2007 WL 715926 (D. Conn. Mar. 9, 2007), Bahrain Telecommunications Co. (BTC), a Bahrain company, and DiscoveryTel, a telecommunications company in Connecticut, entered into an agreement for the exchange of two-way telecommunications traffic. When the business relationship deteriorated, BTC sued DiscoveryTel for breach of contract. The parties subsequently agreed to submit the dispute to arbitration before the London Court of International Arbitration (LCIA)... Full Story
Court Must Have Jurisdiction to Determine Waiver Issue
Griffin v. GMAC Commercial Finance, L.L.C., No. 1:05-CV-199-WBH-GGB, 2007 WL 647294 (N.D. Ga. Feb. 27, 2007)
2/27/2007
A federal court in Georgia held that it could not determine whether a party waived its right to arbitration because the Court lacked jurisdiction over the underlying claims and neither the Federal Arbitration Act (FAA) nor the common law provides a court with authority to prevent "wrongful arbitration."
In Griffin v. GMAC Commercial Finance, L.L.C., No. 1:05-CV-199-WBH-GGB, 2007 WL 647294 (N.D. Ga. Feb. 27, 2007), Griffin filed a lawsuit for employment discrimination. The trial court held that certain state law claims were outside of its jurisdiction and should be arbitrated pursuant to the employment contract instead... Full Story
Proper Procedure for Enforcing Settlement Agreement Is to Amend Underlying Complaint
Export Worldwide, Ltd. v. Knight, No. SA-05-CA-647-XR, 2007 WL 628746 (W.D. Tex. Feb. 27, 2007)
2/27/2007
Applying Texas state law, a federal court in Texas held that amending an underlying complaint to allege breach of contract is the appropriate procedure for seeking specific performance of a mediated settlement agreement.
In Export Worldwide, Ltd. v. Knight, No. SA-05-CA-647-XR, 2007 WL 628746 (W.D. Tex. Feb. 27, 2007), Export and Knight participated in mediation to resolve disputes regarding Knight's default on payments of a loan from Export. The mediation resulted in a settlement agreement whereby Export would waive all underlying claims in exchange for payment from Knight... Full Story
Confidentiality Rule Precludes Court from Resolving Dispute Over Mediated Settlement Agreement
Meyer v. Alpine Lake Property Owners' Ass'n, No. 2:06 CV 59, 2007 WL 709304 (N.D. W. Va. Mar. 5, 2007)
3/5/2007
A federal court in West Virginia refused to enforce a mediated settlement agreement where there was no document memorializing the settlement because under a local rule requiring mediation confidentiality, the Court could not conduct the inquiry necessary to resolve the dispute over the agreement's terms.
In Meyer v. Alpine Lake Property Owners' Ass'n, No. 2:06 CV 59, 2007 WL 709304 (N.D. W. Va. Mar. 5, 2007), Meyer asked the court to enforce a settlement agreement reached at mediation but not memorialized... Full Story
Raw Estimate of Arbitration Costs Insufficient to Show Prohibitive Cost
Spenceley Office Equipment v. Ricoh Latin America, Inc., No. 2005-152, 2007 WL 683787 (D.V.I. Feb. 28, 2007)
2/28/2007
A federal court in the Virgin Islands held that a party failed to demonstrate that arbitration would be prohibitively expensive when it did not provide evidence of what numbers it used to calculate the cost of arbitration and did not show that it would be unable to pay the costs of arbitration.
In Spenceley Office Equipment v. Ricoh Latin America, Inc., No. 2005-152, 2007 WL 683787 (D.V.I. Feb. 28, 2007), Spenceley and Ricoh entered into an agreement whereby Spenceley would distribute Ricoh office products in the Virgin Islands. The agreement contained an arbitration clause... Full Story
State Cases
California Court Finds That Husband Did Not Have Statutory Authority to Enter Arbitration Agreement on Wife's Behalf
Flores v. Evergreen at San Diego, LLC, No. D048002, 2007 WL 738964 (Cal. Ct. App. Mar. 13, 2007)
3/13/2007
In affirming a lower court order denying a nursing home's motion to compel arbitration, the California Court of Appeal held that the nursing home resident's husband did not have statutory authority to enter an arbitration agreement on her behalf.
In Flores v. Evergreen at San Diego, LLC, No. D048002, 2007 WL 738964 (Cal. Ct. App. Mar. 13, 2007), Luis Flores admitted his wife Josephina to an Evergreen nursing home. During the admission process, Luis signed an arbitration agreement on his wife's behalf... Full Story
Defamation Suit Deemed "Stand-Alone" Action Not Encompassed by Arbitration Clause
Bono v. David, 147 Cal. App. 4th 1055 (Cal. Ct. App. Feb. 21, 2007)
2/12/2007
In a defamation suit between two parties involved in a broader dispute among tenants in common, a state court in California held that an arbitration clause covering the "construction or application" of contract provisions was not broad enough to cover a defamation claim.
In Bono v. David, 147 Cal. App. 4th 1055 (Cal. Ct. App. Feb. 21, 2007), Bono sued David for defamation based on comments that David made to a third party about Bono's emotional stability and trustworthiness. David objected to the suit, arguing that Bono had failed to exhaust the remedies of mediation and arbitration as required by a Memorandum of Understanding (MOU) that was executed by tenants in common of property in California... Full Story
Florida Court Affirms Decision to End Unconscionability Inquiry When No Procedural Flaws Found
Lopez v. Ernie Haire Ford, Inc., No. 2D06-1665, 2007 WL 486616 (Fla. Dist. Ct. App. Feb. 16, 2007)
2/16/2007
A state court in Florida affirmed the dismissal of an unconscionability claim after a lower court found that the agreement was not procedurally unconscionable, even though the court did not inquire into whether the agreement was substantively unconscionable.
In Lopez v. Ernie Haire Ford, Inc., No. 2D06-1665, 2007 WL 486616 (Fla. Dist. Ct. App. Feb. 16, 2007), Lopez and Ford disputed over excess mileage charges on a leased vehicle. When Ford brought a motion to compel arbitration, Lopez argued that the arbitration agreement was unconscionable... Full Story
Four-Year Delay Leads to Equitable Estoppel of Right to Arbitrate
Green Tree Servicing, LLC v. Phelps, No. 2005-CA-001666-MR, 2007 WL 625077 (Ky. Ct. App. Mar. 2, 2007)
3/2/2007
Participation in pre-litigation proceedings for four years before moving to compel arbitration constitutes waiver of the right to pursue arbitration, a state court in Kentucky held.
In Green Tree Servicing, LLC v. Phelps, No. 2005-CA-001666-MR, 2007 WL 625077 (Ky. Ct. App. Mar. 2, 2007), Green Tree Servicing brought an action to foreclose on two promissory notes secured by Phelps' property. Green Tree moved for default judgment and participated in discovery associated with the lawsuit. Four years passed before Green Tree moved to compel arbitration of its claims... Full Story
Court Refuses to Enforce Arbitration Clause on Backside of Faxed Agreement Where Party Denied Seeing Backside of the Agreement
Britt v. May Davis Group, Inc., No. COA06-782, 2007 WL 656279 (N.C. Ct. App. Mar. 6, 2007)
3/6/2007
In its second case in less than a month addressing the validity of arbitration agreements located on the backside of a faxed agreement, the North Carolina Court of Appeals again held that the party seeking to compel arbitration failed to prove the existence of a valid arbitration agreement.
In Britt v. May Davis Group, Inc., No. COA06-782, 2007 WL 656279 (N.C. Ct. App. Mar. 6, 2007), Britt signed an account application when he opened a back account with May Davis. When Britt later sued for fraud, May Davis moved to compel arbitration pursuant to an arbitration clause in the customer agreement. The trial court denied the motion... Full Story
In Ohio, an Order Denying Motion to Compel Arbitration Is Reviewed De Novo
West v. Household Life Ins. Co., Slip Copy, No. 06AP-906, 2007 WL 611286 (Ohio Ct. App. Mar. 01, 2007)
3/1/2007
A state court in Ohio held that when review of an order denying a motion to compel arbitration implicates a question of law, the appropriate standard of review is de novo, not abuse of discretion.
In West v. Household Life Ins. Co., Slip Copy, No. 06AP-906, 2007 WL 611286 (Ohio Ct. App. Mar. 01, 2007), West purchased credit disability and life insurance policies from Household. Shortly thereafter, West became totally disabled... Full Story
Fee-Splitting Provision Does Not Render Arbitration Agreement Unenforceable
In re Standard Meat Co., L.P., No. 05-06-01470-CV, 2007 WL 730660 (Tex. App. Mar. 9, 2007)
3/9/2007
The Texas Court of Appeals refused to hold an arbitration agreement in an employment contract unconscionable simply because it contained a fee-splitting provision.
In In re Standard Meat Co., L.P., No. 05-06-01470-CV, 2007 WL 730660 (Tex. App. Mar. 9, 2007), Chagoya sued Standard Meat, her former employer, for alleged negligence in connection with an on-the-job injury. Standard Meat moved to compel arbitration pursuant to an arbitration agreement that required Chagoya to pay some of the arbitration costs, including a $75 application fee and 25 percent of the "costs of the proceeding"... Full Story
ADR Legislation & Regulation
LEGISLATION
CT S 1142
INTRODUCER: Joint Banks
TITLE: Interest on Lawyers Trust Account Advisory Panel
INTRODUCED: 02/09/2007
DISPOSITION: Failed
LOCATION: Died
Commentary:
Provides: "If a banking corporation or financial institution believes that the program is not being administered or implemented in accordance with the provisions of this section, including the rules adopted pursuant to subsection (b) of this section, such banking corporation or financial institution may apply in writing to the Superior Court for an order authorizing the banking corporation or financial institution to submit the matter in controversy to arbitration by a person or persons who are mutually agreed upon by the petitioning banking corporation or financial institution and the organization then designated to administer the [IOLTA] program."
DE H 73
PRIMARY SPONSOR: Schwartzkopf [D]
TITLE: Relating To Rent Increases
INTRODUCED: 03/14/2007
DISPOSITION: Pending
LOCATION: House Housing and Community Affairs Subcommittee on Manufactured Housing
Commentary:
Provides for mediation for homeowners or associations over proposed lot rent increases for mobile homes.
FL S 2214
AUTHOR: Dockery [R]
TITLE: Deceptive and Unfair Trade Practices
PREFILED: 02/26/2007
INTRODUCED: 03/15/2007
DISPOSITION: Pending
LOCATION: Senate Transportation Committee
Commentary:
Generally, an act relating to deceptive and unfair trade practices used by motor vehicle dealers, does NOT list arbitration as one of these, but in passing allows for either judicial or arbitral settlement;
HI HCR 287
AUTHOR: Say [D]
TITLE: Department of Commerce and Consumer Affairs
INTRODUCED: 03/14/2007
DISPOSITION: Pending
LOCATION: HOUSE
Commentary:
Concurrent Resolution calling for an evaluation on the status of a dispute resolution program for condominium associations, which includes mediation and arbitration.
HI HR 228
AUTHOR: Say [D]
TITLE: Department of Commerce and Consumer Affairs
INTRODUCED: 03/14/2007
DISPOSITION: Pending
LOCATION: HOUSE
Commentary:
House Resolution requesting an evaluation of Hawaii's current dispute resolution system in place for condominium disputes.
HI SCR 72
AUTHOR: Hooser [D]
TITLE: Predatory Mortgage Lending Practices
INTRODUCED: 03/13/2007
DISPOSITION: Pending
LOCATION: SENATE
Commentary:
Requests that the auditor conduct a study on alleged "predatory" lending practices, including arbitration.
KY H 259
BR: 1353
SPONSOR: Belcher [D]
TITLE: Accounting Practice
INTRODUCED: 02/06/2007
LAST AMEND: 03/07/2007
DISPOSITION: To Governor
LOCATION: To Governor
Commentary:
Relating to accounting practice and licensure, mediation may be used to informally resolve disputes.
MO S 284
SPONSOR: Griesheimer [R]
TITLE: Provision of Video Services
INTRODUCED: 01/16/2007
LAST AMEND: 03/14/2007
DISPOSITION: To Governor
LOCATION: To Governor
MO S 339
SPONSOR: Mayer [R]
TITLE: Public Contracts
INTRODUCED: 01/22/2007
LAST AMEND: 02/20/2007
DISPOSITION: To Governor
LOCATION: To Governor
Commentary:
Relates to public construction: "The employer shall have the right to dispute such notice of penalty in writing to the department within forty five days of the date of the notice. Upon receipt of this written notice of dispute, the department shall notify the employer of the right to resolve such dispute through arbitration. The state and the employer shall submit to an arbitration process to be established by the department by rule, and in conformance with the guidelines and rules of the American Arbitration Association or other arbitration process mutually agreed upon by the employer and the state."
MS H 1313
AUTHOR: Formby [R]
TITLE: Insurance Companies
INTRODUCED: 01/15/2007
ENACTED: 03/15/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Provides for arbitration between a CPA and an insurer regarding audits.
MS H 1368
AUTHOR: Miles [D]
TITLE: State Transportation Arbitration Board
INTRODUCED: 01/15/2007
LAST AMEND: 03/06/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Revises composition, method of selection, and terms of members of State Transportation Arbitration Board.
NC H 730
AUTHOR: Goforth [D]
TITLE: Mediation of Property Insurance Claims
PREFILED: 03/14/2007
INTRODUCED: 03/15/2007
DISPOSITION: Pending
LOCATION: House Insurance Committee
Commentary:
Makes minor changes to law concerning mediation of property insurance claims.
NC S 693
AUTHOR: Clodfelter [D]
TITLE: Attorneys Fees Provisions
PREFILED: 03/12/2007
INTRODUCED: 03/13/2007
DISPOSITION: Pending
LOCATION: Senate Judiciary I Committee
Commentary:
Asserts validity of reciprocal attorney's fees in litigation and arbitration.
NC S 735
AUTHOR: Dalton [D]
TITLE: Mediation of Property Insurance Claims
PREFILED: 03/13/2007
INTRODUCED: 03/14/2007
DISPOSITION: Pending
LOCATION: Senate Judiciary II Committee
Commentary:
Amends law for mediation of property insurance claims, including changing the source of mediator standards.
ND H 1130
AUTHOR: Industry, Business and Labor Cmt
TITLE: Highway Construction Arbitration
PREFILED: 12/29/2006
INTRODUCED: 01/03/2007
LAST AMEND: 02/06/2007
ENACTED: 03/13/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Commentary:
Amends law relating to highway construction arbitration.
NJ S 2624
SPONSOR: Lesniak [D]
TITLE: Nurse Multistate License Compact
PREFILED: 03/12/2007
INTRODUCED: 03/15/2007
DISPOSITION: Pending
LOCATION: Senate Health, Human Services and Senior Citizens Committee
Commentary:
Would enter New Jersey in Nurse Multistate Licensure Compact, which includes an arbitration panel for disputes between compacting states.
NM H 192
AUTHOR: Chasey [D]
TITLE: Mediation Procedures
INTRODUCED: 01/18/2007
ENACTED: 03/13/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Relates to enacting the Mediation Procedures Act; establishes confidentiality for mediation communications; provides exceptions for disclosure of mediation communications.
NM H 959
AUTHOR: Varela [D]
TITLE: Department of Information Technology
INTRODUCED: 02/07/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Commentary:
Creating the Department of Information Technology Act. Section G(7) provides for the quarterly meeting and approval of mediation between an executive agency and the secretary as chief information officer.
NV S 292
AUTHOR: Care [D]
TITLE: Uniform Mediation Act
INTRODUCED: 03/15/2007
DISPOSITION: Pending
LOCATION: Senate Judiciary Committee
Commentary:
Would enact the Uniform Mediation Act, as promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), in the State of Nevada.
NY S 3608
SPONSOR: Maziarz [R]
TITLE: Homeowners in Manufactured Home Parks
INTRODUCED: 03/12/2007
DISPOSITION: Pending
LOCATION: Senate Housing, Construction, and Community Development Committee
Commentary:
Provides recourse for homeowners in manufactured home parks who are confronted with unjustifiable rent increases; creates a mediation system under the guise of a court ADR service.
TX H 3091
SPONSOR: Frost [D]
TITLE: Resolution Dispute
INTRODUCED: 03/08/2007
DISPOSITION: Introduced
LOCATION: House
Commentary:
A person drafting a consumer arbitration agreement must clearly and conspicuously disclose any required arbitration, costs for said arbitration, and other charges. There are also strict publication requirements for "private arbitration" companies administering 50 or more consumer arbitrations in a year. The bill also prohibits certain pre-dispute arbitration clauses in the insurance context.
US H 1519
SPONSOR: Gonzalez [D]
TITLE: Homebuilding Purchase Contracts
INTRODUCED: 03/14/2007
DISPOSITION: Pending
LOCATION: Multiple Committees
Commentary:
Federal bill prohibiting homebuilding purchase contracts that contain in a single document both a mandatory arbitration agreement and other contract provisions, to prohibit requiring purchasers to consent to a mandatory arbitration agreement as a condition precedent to entering into a homebuilding purchase contract, and to provide for the Federal Trade Commission to enforce violations of such prohibitions as unfair and deceptive acts or practices.
UT H 44
AUTHOR: Urquhart [R]
TITLE: Motor Vehicle Insurance Arbitration
PREFILED: 12/18/2006
INTRODUCED: 01/15/2007
LAST AMEND: 02/09/2007
ENACTED: 03/14/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Provides that person may elect to submit a third party motor vehicle accident bodily injury claim to arbitration, and clarifies that an arbitration award is limited to a specified amount in addition to any available person injury protection benefits and any claim for property damage.
UT S 9
AUTHOR: Hillyard [R]
TITLE: Nonprofit Corporation Amendments
PREFILED: 12/13/2006
INTRODUCED: 01/15/2007
LAST AMEND: 02/15/2007
ENACTED: 03/15/2007
DISPOSITION: Enacted
LOCATION: Signed by Governor
Commentary:
Amends provisions concerning non profit corporations. Includes arbitration and mediation as proceedings.
VA H 2201
AUTHOR: McQuigg [R]
TITLE: Interstate Compact for Juveniles
PREFILED: 01/09/2007
INTRODUCED: 01/10/2007
LAST AMEND: 02/16/2007
ENACTED: 03/12/2007
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary:
Creates the Interstate Compact for Juveniles, providing for mediation and other ADR types for disputes among compacting states.
WA S 5910
AUTHOR: Brandland [R]
TITLE: Medical Malpractice Claim
INTRODUCED: 02/06/2007
LAST AMEND: 03/13/2007
DISPOSITION: Pending
LOCATION: House Judiciary Committee
Commentary:
Modifies the notice requirement of intent to file a medical malpractice claim; modifies mandatory mediation requirements through the superior court.
WV H 2763
SPONSOR: Kominar [D]
TITLE: Financial Examinations
INTRODUCED: 01/30/2007
LAST AMEND: 03/08/2007
DISPOSITION: To Governor
LOCATION: Eligible for Governor
Commentary:
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 under article ten of this chapter, the mediation or arbitration provisions shall operate at the option of the statutory successor.
REGULATION
MS 10946 (2007)
AUTHOR: Tort Claims Board
TITLE: Tort Claims Board Guidelines
PROPOSED: 02/28/2007
ADOPTED: 02/28/2007
Commentary:
The [Mississippi Tort Claims] Board shall have the discretionary authority to participate with willing claimants in voluntary non-binding mediation of tort
claims against state agencies. The Board shall participate in any mediation ordered by a court pursuant to the mediation rules adopted by the Mississippi Supreme Court."
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