Federal Cases
Interlocutory Appeals of Orders Denying Injunctions Against Arbitration Not Immediately Available
ConArt, Inc. v. Hellmuth, Obata + Kassabaum, Inc., NO. 06-16665, 2007 WL 2994001 (11th Cir. Oct. 16, 2007)
10/16/2007
An order declining to enjoin arbitration is not immediately appealable under a general statute permitting appeals of orders refusing injunctions. Instead, under the Federal Arbitration Act (FAA), an appeal cannot be taken until after the arbitration concludes, according to the Eleventh Circuit Court of Appeals.
In ConArt, Inc. v. Hellmuth, Obata + Kassabaum, Inc., NO. 06-16665, 2007 WL 2994001 (11th Cir. Oct. 16, 2007), a dispute arose out of a construction project between contractor Hellmuth and sub-contractor ConArt... Full Story
District of Columbia Court of Appeals Vacates Employment Award on Public Policy Grounds
Fairman v. District of Columbia, No. 02-CV-650, 2007 WL 3096588 (D.C. Oct. 25, 2007)
10/25/2007
The District of Columbia Court of Appeals has vacated an employment arbitration award on public policy grounds, holding that the contract amendments on which the awards were based were not executed by the District of Columbia’s Control Board in compliance with federal statute.
In Fairman v. District of Columbia, No. 02-CV-650, 2007 WL 3096588 (D.C. Oct. 25, 2007), Fairman was employed as Chief Executive Officer of the Public Benefit Corporation (PBC), a governmental unit of the District of Columbia. The parties entered an employment agreement in 1997, containing both an arbitration provision and a severance provision guaranteeing six months salary to Fairman upon early termination... Full Story
Federal Court Requires Non-Signatory Seeking Benefits of Contract to Also Abide By Its Arbitration Provision
Southern Illinois Beverage, Inc. v. Hansen Beverage Co., No. 07-CV-391-DRH, 2007 WL 3046273 (S.D. Ill. Oct. 15, 2007)
10/15/2007
Granting a motion to compel arbitration in a beverage trade dispute, an Illinois federal court held that a non-signatory must arbitrate its claim when the non-signatory seeks to benefit from the contract containing the arbitration agreement.
In Southern Illinois Beverage, Inc. v. Hansen Beverage Co., No. 07-CV-391-DRH, 2007 WL 3046273 (S.D. Ill. Oct. 15, 2007), beverage distributor Folsom entered into an agreement whereby it agreed to distribute Hansen’s non-alcoholic beverage called “Monster” in six Illinois counties. In 2005, Southern Illinois Beverage (SIB) became a subfranchisee of Folsom. In 2006, Hansen canceled the agreement and began selling the right to distribute Monster in the contracted sales territory to third parties... Full Story
New York Convention Trumps McCarran-Ferguson Act
Certain Underwriters at Lloyd's, London v. Simon, No. 1:07-CV-0899-LJM-WTL, 2007 WL 3047128 (S.D. Ind. Oct. 18, 2007)
10/18/2007
In ordering arbitration of an insurance dispute, a federal court in Indiana held that there is no “reverse preemption” under the McCarran-Ferguson Act (MFA) where there is an international arbitration agreement governed by the Convention on Enforcement of Foreign Awards (the Convention). In other words, the Convention trumps the MFA.
In Certain Underwriters at Lloyd's, London v. Simon, No. 1:07-CV-0899-LJM-WTL, 2007 WL 3047128 (S.D. Ind. Oct. 18, 2007), Simon, a Virgin Islands resident, bought a health insurance policy issued by Lloyd’s, a company based in the United Kingdom. When Lloyd’s denied payment on a claim, Simon filed an arbitration claim in accordance with the policy, seeking a declaration from the arbitrator that the arbitration clause in the policy was unenforceable... Full Story
Mississippi Statute Gave Health Care Surrogate Authority to Agree to Arbitration
Gulledge v. Trinity Mission Health & Rehab of Holly Springs, LLC, No. 3:07CV008-M-A, 2007 WL 3102141 (N.D. Miss. Oct. 22, 2007)
10/22/2007
In ordering arbitration of a nursing home dispute, a federal court in Mississippi found that in light of the nursing home resident’s incapacity, her daughter had statutory authority to agree to arbitration on her behalf.
In Gulledge v. Trinity Mission Health & Rehab of Holly Springs, LLC, No. 3:07CV008-M-A, 2007 WL 3102141 (N.D. Miss. Oct. 22, 2007), Bowens admitted her mother, Campbell, to a Trinity Mission nursing home. During the admission process, Bowens signed an arbitration agreement on her mother’s behalf... Full Story
Contractual Relationship with Dispute Resolution Administrator Did Not Create Threat of Bias
Gilbert v. Big Sandy Furniture, Inc., No. 2:07-cv-0087, 2007 WL 2668137 (S.D. Ohio Sept. 6, 2007)
9/6/2007
In ordering arbitration of an employment dispute, a federal district court in Ohio rejected the employee’s argument that a contractual relationship between the employer and the dispute resolution administrator created a threat of bias.
In Gilbert v. Big Sandy Furniture, Inc., No. 2:07-cv-0087, 2007 WL 2668137 (S.D. Ohio Sept. 6, 2007), Gilbert was employed by Big Sandy. When she was hired, Gilbert received an employment packet that contained an employment dispute resolution plan administered by Dispute Resolutions, Inc. (DRI). At that time, Gilbert signed an employee acknowledgement form indicating that she agreed to submit all claims arising out of her employment to binding arbitration as specified by the dispute resolution plan... Full Story
State Cases
Award of Attorney Fees to Prevailing Party Not in Excess of Arbitrator’s Powers
Davis v. Cadena Creek Mobile Home Park, No. E040734, 2007 WL 2219049 (Cal. Ct. App.4d Aug. 03, 2007)
8/3/2007
A California state appellate court rejected an invitation to review the substance of an arbitration award based upon the allegation that the arbitrator exceeded his powers by awarding attorney fees to the prevailing party in a rent dispute.
In Davis v. Cadena Creek Mobile Home Park, No. E040734, 2007 WL 2219049 (Cal. Ct. App.4d Aug. 03, 2007), Theodore Davis purchased a mobile home and leased a space for the home with Cadena Creek. A dispute arose between the parties regarding the rent contract, which proceeded to arbitration. The arbitrator decided in favor of Davis and awarded attorney fees... Full Story
California Court Rejects Class Waiver in Franchisee’s Arbitration Agreement
McGuire v. CoolBrands Smoothies Franchise, LLC, No. H030202, 2007 WL 2381545 (Cal. Ct. App. Aug. 22, 2007)
8/22/2007
The California Court of Appeal held that an arbitration agreement precluding the recovery of exemplary or punitive damages, prohibiting class-wide arbitration, and requiring arbitration of California franchisee claims in New York was substantively unconscionable and, when coupled with oppression and unfair surprise, unenforceable.
In McGuire v. CoolBrands Smoothies Franchise, LLC, No. H030202, 2007 WL 2381545 (Cal. Ct. App. Aug. 22, 2007), McGuire entered into a contract as a California franchisee of CoolBrands. The contract contained an arbitration agreement requiring that all controversies, disputes, or claims arising out of or related to the contract be subject to arbitration... Full Story
BBB Arbitration is Quasi-Judicial Hearing, Invokes Arbitral Immunity
Kidwell v. General Motors Corp., No. 2D05-5935, 2007 WL 2213324 (Fla. Dist. Ct. App.2d Aug. 03, 2007)
8/3/2007
A state court in Florida held that an arbitration conducted by the Better Business Bureau regarding a complaint under Florida’s lemon law was a quasi-judicial hearing, and thus an arbitrator was afforded absolute immunity for acts in relation to the proceeding.
In Kidwell v. General Motors Corp., No. 2D05-5935, 2007 WL 2213324 (Fla. Dist. Ct. App.2d Aug. 03, 2007), Billy Kidwell purchased a truck from General Motors (GM). He subsequently filed complaint under Florida’s Lemon Law alleging problems with the vehicle. Subsequent to a Better Business Bureau (BBB) arbitration proceeding, an award was issued in GM’s favor... Full Story
Party Waives Right to Arbitrate by Failing to Mention Arbitration When Bringing Arbitrable Claims in Court
Glazer’s Distributors of Illinois, Inc. v. NWS-Illinois, LLC, No. 1-06-3274, 2007 WL 2579969 (Ill. Ct. App. Sept. 7, 2007)
9/7/2007
Affirming a circuit court’s finding of waiver in a commercial dispute, the Illinois Court of Appeals held that a party had waived its right to arbitrate by failing to even mention arbitration when it brought arbitrable claims in court.
In Glazer’s Distributors of Illinois, Inc. v. NWS-Illinois, LLC, No. 1-06-3274, 2007 WL 2579969 (Ill. Ct. App. Sept. 7, 2007), Glazer’s contracted to provide assistance, management, and consultation services for NWS, a wholesale distributor of alcoholic beverages. The contract contained an arbitration provision mandating arbitration of disputes arising from the parties’ agreement... Full Story
Montana Supreme Court Applies U.S. Supreme Court’s Buckeye Holding
Larsen v. Western States Ins. Agency, Inc., No. DA 06-0802, 2007 WL 3054963 (Mont. Oct 22, 2007)
10/22/2007
Upholding a district court’s ruling that an employment agreement’s arbitration clause was valid but finding that the lower court exceeded its authority by deciding substantive disputes under the agreement, the Montana Supreme Court held that an arbitrator must rule on a contract’s validity once a court has determined an arbitration clause is valid.
In Larsen v. Western States Ins. Agency, Inc., No. DA 06-0802, 2007 WL 3054963 (Mont. Oct 22, 2007), Western hired Larsen as an insurance agent in 2000 and provided her with a book of business. The employment agreement contained a non-competition clause prohibiting Larsen from accepting business from Western customers after her employment with Western and a liquidated damages clause imposing a financial penalty for beach of the non-competition agreement. Additionally, the agreement contained an arbitration provision governing all employment related disputes... Full Story
No Entitlement to Attorney’s Fees to Confirm Arbitration Award Without Express Agreement
Rock Work, Inc. v. Pulaski Const. Co., Inc., 2007 WL 3101402 (N.J. Super. A.D. Oct. 25, 2007)
10/25/2007
A New Jersey state appellate court denied a request for fees associated with obtaining confirmation of an arbitration award because the parties’ agreement did not expressly provide for the award of attorney’s fees.
In Rock Work, Inc. v. Pulaski Const. Co., Inc., 2007 WL 3101402 (N.J. Super. A.D. Oct. 25, 2007), Norwood was a subcontractor on a project managed by contractor Pulaski. After Pulaski was sued, Pulaski impleaded Norwood. Pursuant to an arbitration agreement amongst the parties, the dispute proceeded to arbitration... Full Story
ADR Legislation & Regulation
LEGISLATION
IL H 4169
SPONSOR: Molaro [D]
TITLE: Cable Video Arbitration
INTRODUCED: 11/02/2007
DISPOSITION: Pending
LOCATION: HOUSE
Commentary:
Amends the Cable and Video Competition Law of 2007 in the Public Utilities Act. Provides that, if an independent programmer has reason to believe that it has not been treated in a fair, reasonable, and nondiscriminatory manner concerning carriage of a competing programming channel, then it may submit a request for commercial arbitration with the vertically integrated cable operator over the terms and conditions of carriage within 90 days
after a first time request for carriage or renewal of a carriage agreement.
MA H 4244
AUTHOR: Office of the Governor
TITLE: Labor Relation Agencies
INTRODUCED: 09/17/2007
ENACTED: 10/17/2007
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary:
Creates the division of labor relations in order to increase efficiency, effectiveness and fairness of the Commonwealth's labor relations agencies; includes a dispute resolution office. Allows for dispute resolution mechanisms to resolve any dispute in the division.
ME LR 3228
AUTHOR: Office of Martin
TITLE: Divorce Mediation
PREFILED: 10/09/2007
DISPOSITION: Pending
LOCATION: Legislature
Commentary:
Requires a waiting period from the close of divorce mediation before a valid mediation agreement is signed.
OH H 377
SPONSOR: Blessing [R]
TITLE: Video Programming Disputes
INTRODUCED: 11/01/2007
DISPOSITION: Pending
LOCATION: House Rules and Reference Committee
Commentary:
To enact section 1332.36 of the Revised Code to require cable operators to participate in arbitration regarding disputes with providers of competing video programming.
RI H 6280
AUTHOR: McNamara [D]
TITLE: State Affairs And Government
INTRODUCED: 04/11/2007
ENACTED: 10/30/2007
DISPOSITION: Enacted
LOCATION: Chaptered
Commentary:
Would provide that notwithstanding the enumeration of the powers of the Director of the Department of Corrections, no arbitration award could be vacated, remanded or set aside on the basis of a conflict with the powers of the Director.
US S 294
SPONSOR: Lautenberg [D]
TITLE: Reauthorizing Amtrak
INTRODUCED: 01/16/2007
LAST AMEND: 10/29/2007
DISPOSITION: Pending
LOCATION: House Transportation & Infrastructure Committee
Commentary:
A bill to reauthorize Amtrak; provides for arbitration over disputes regarding metrics and standards, allowing a party developing those standards to petition the Surface Transportation Board to appoint an arbitrator.
REGULATION
Maryland 07-264
AGENCY: Department of Labor, Licensing and Regulation/Commission of Real Estate Appraisers and Home Inspectors
TITLE: Educational Requirements
PROPOSED: 09/28/2007
CITATION: COMAR 09.19.02.01-.03
Commentary:
The regulation would amend required educational criteria for real estate appraisers, as enacted and mandated by the federal Appraiser Qualifications Board of the Appraisal Foundation, to become effective no later than January 1, 2008. The regulation would allow training in arbitration and dispute resolution to count for continuing education credit.
Texas 32 TEXREG 5235
AGENCY: Real Estate Commission
TITLE: Practice and Procedure
PROPOSED: 08/13/2007
ADOPTED: 08/13/2007
CITATION: 22 TAC 23.533.533.1 -.8, .20, .30 -.37, .40
Commentary:
This regulation creates an ADR Administrator office within the State Office of Administrative Hearings to oversee and mediate certain real estate disputes.
U.S. 69 FR 43546
AGENCY: Federal Trade Commission
TITLE: Affiliate Marketing Rule
PROPOSED: 06/15/2004
ADOPTED: 10/29/2007
CITATION: 16 CFR Part 680
Commentary:
Establishes rules pertaining to affiliate marketing rule. Provides for consumer notice and opportunity to prohibit affiliates from using certain information to make or send marketing solicitations to the consumer. Arbitration clauses and choice of law provisions may continue to have legal effect after all contractual performance has ended.
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