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Tag Archives: Arbitration

Non-Ethical Billing – Busted!

02 Wednesday Dec 2015

Posted by Celia C. Elwell, RP in Arbitration, Attorney Fees and Costs, Billing, Legal Ethics

≈ Comments Off on Non-Ethical Billing – Busted!

Tags

Arbitration, Copy Cat Affidavits, Double Billing, Legal Ethics

Lawyer Ordered to Pay Back $633,000 in Fees, by Thomas J. Crane, San Antonio Employment Law Blog

 http://bit.ly/1jzMPn2

The right to confront one’s accusers in trial is a fundamental principle of our judicial system. Or, is it? One lawyer learned that confronting one’s accusers is not so fundamental, after all.

Ernesto Martinez, Jr. was accused of double billing. That is, he was accused of billing two different sets of clients for the same 17.5 hours of work in one day. So, he was in effect boiling for 35 hours of work in one normal 24 hour day. At least according to Wikipedia, there are only 24 hours in an average day. . . .

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Houston Law Firm Fires Pregnant Employees.

18 Friday Sep 2015

Posted by Celia C. Elwell, RP in Arbitration, EEOC, Employment Contracts, Employment Law, Gender Discrimination, Law Office Management, Pregnancy Discrimination

≈ Comments Off on Houston Law Firm Fires Pregnant Employees.

Tags

Arbitration, EEOC, Employment Law, Pregnancy Discrimination, San Antonio Employment Law Blog, Thomas J. Crane

Wayne Wright Fired Another Pregnant Worker, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/q57966e

A law firm in Houston, Texas, fired a female employee because she became pregnant. The employee filed a charge against the firm with the EEOC, and then sued the firm. You would think that, if the firm somehow missed that this was an employment no-no, this experience educated management at the firm.

Unfortunately, that was not the case. The firm, which has offices in several locations, fired a paralegal from its El Paso firm when she became pregnant. The paralegal sued the firm, but this one has a twist. The firm invoked an arbitration agreement.

The matter went up to the El Paso Court of Appeals, which reversed the trial court. The paralegal’s case will go to arbitration. Why wasn’t this a slam dunk against the firm? -CCE

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Arbitration Panel Makes Come Back, Giving Lance Armstrong $10 Million Bench Slap.

22 Sunday Feb 2015

Posted by Celia C. Elwell, RP in Arbitration, Functus Officio Doctrine

≈ Comments Off on Arbitration Panel Makes Come Back, Giving Lance Armstrong $10 Million Bench Slap.

Tags

Arbitration, Arbitration Nation Blog, Functus Officio Doctrine, Lance Armstrong, Liz Kramer

Lessons From Lance Armstrong About the Finality of Arbitration Awards, by Liz Kramer, Arbitration Nation Blog (with hat tip to Karl Bayer, Disputing Blog)

http://tinyurl.com/ngquns4

On February 4, an arbitration panel ordered Lance Armstrong to pay $10 million to his former promotions company, SCA, as a result of his ‘unparalleled pageant of international perjury, fraud and conspiracy’ that covered up his use of performance-enhancing drugs. (Read the NYT story about it here.) What is curious about the award, from an arbitration law standpoint, is that SCA essentially re-opened an arbitration that it had lost with Armstrong in 2005 to obtain this new award.

The general rule of thumb is that arbitrators lose jurisdiction once they issue the final award. Other than the short period within which parties may request that arbitrators correct a clerical or computational error under the arbitral rules (AAA gives 20 days; JAMS gives only 7), the arbitrators turn into pumpkins for all practical purposes after the final award is issued. The arbitral rules do not have any equivalent to Rule 60, which in state and federal courts allows a judge to re-do a judgment or order based on newly discovered evidence, fraud, or mistake. (But even Rule 60 sets a deadline of one year after the judgment is entered to request that the judgment be vacated…)

There is even a fancy Latin name for the reason that arbitrators turn into pumpkins after they issue final awards: functus officio. The policy is that arbitration awards are supposed to bring finality, and we wouldn’t want arbitrators revisiting awards based on improper or ex parte information. However, one of my favorite arbitration resources, Domke on Arbitration, suggests that there are now so many exceptions to the functus officio doctrine that they just about swallow the rule. Courts have allowed arbitrators to revisit their awards to correct mistakes, to rule on an issue that was submitted but not decided, to clarify an ambiguity, and always, if the parties contractually authorize the same panel to hear a new issue.

That last exception explains how the SCA got a second bite at its arbitration with Armstrong. . . .

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Contracts Must Be Drafted With Specific Language To Enforce Arbitration.

01 Monday Dec 2014

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, 8th Circuit Court of Appeals, Appellate Law, Arbitration, Arbitration, Breach, Contract Law, Employment Law, Legal Analysis, Legal Writing, Precedent

≈ Comments Off on Contracts Must Be Drafted With Specific Language To Enforce Arbitration.

Tags

Arbitration, Breach of Contract, Contract Law, Legal Writing, Lexology, Liz Kramer, Stinson Leonard Street LLP

“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration, by Arbitration Nation Blog, posted at Lexology Blog

http://tinyurl.com/mh3y6z3

Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts ‘harmonize’ language from different parts of an agreement or from multiple agreements.

The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: ‘if the dispute is not resolved through mediation, the parties may submit the controversy or claim to Arbitration. If the parties agree to arbitration, the following will apply…’ The party fighting arbitration (a city in South Dakota) argued the quoted language does not mandate arbitration, it makes arbitration an option for the parties, so the case should remain in court. [Emphasis in original.]

The party seeking arbitration emphasized a sentence at the end of the arbitration paragraph saying that the arbitrator’s ‘decision shall be a condition precedent to any right of legal action.’ It argued that the only way to harmonize that language is to conclude that arbitration is required. The court disagreed, finding that a reasonable interpretation is simply that if the parties decided to arbitrate, the arbitration decision is a condition precedent to further legal action. Quam Construction Co., Inc. v. City of Redfield, ___ F.3d___, 2014 WL 5334781 (8th Cir. Oct. 21, 2014). Therefore, the Eighth Circuit affirmed the district court’s denial of the motion to compel arbitration.

The Fifth Circuit had a harder case in Sharpe v. AmeriPlan Corp., __ F.3d__, 2014 WL 5293707 (5th Cir. Oct. 16, 2014). In that case, three former sales directors of a company sued for breach of contract after they were terminated. The company moved to compel arbitration and the district court granted the motion.

Their original employment agreements with the company did not call for arbitration, in fact they set the venue for legal proceedings exclusively in Texas courts. The employment agreements also incorporated a ‘Policies and Procedures Manual.’ The employment agreements could only be modified with written consent of all parties, but the Manual could be unilaterally modified by the company. Years later, the company amended its Manual to provide for mandatory arbitration.

The Fifth Circuit reversed the district court, finding that the new arbitration clause was unenforceable. First, the court concluded that the jurisdiction and venue clauses in the original employment agreements survived the amendment to the Manual, because there was no written and signed change to the employment agreements themselves and because the company had affirmatively relied on the venue clause (calling for Texas courts) when it transferred the case from California to Texas. And second, the court found that the old and new provisions “cannot be harmonized” without rendering the original agreement meaningless.

There are drafting lessons from these cases: if you want to have mandatory arbitration of disputes, the contract must consistently say that, and if you want to modify existing agreements to add arbitration, make sure to honor any language in the original agreement about how that agreement can be amended or modified and be clear what clauses are replaced or superseded.

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“Lost In Fine Print” – Documentary on Forced Arbitration.

20 Monday Oct 2014

Posted by Celia C. Elwell, RP in Arbitration, Consumer Law, Contract Law

≈ Comments Off on “Lost In Fine Print” – Documentary on Forced Arbitration.

Tags

Arbitration, Consumer Law, Contract Law, ContractsProf Blog, Lost In Fine Print, Nancy Kim

Documentary on Forced Arbitration, by Nancy Kim, ContractsProf Blog

http://tinyurl.com/kulpycd

The Alliance for Justice has released a documentary on forced arbitration called Lost in the Fine Print.  It’s very well-done, highly watchable (meaning your students will stay awake and off Facebook during a viewing), and educational.  I recently screened the film during a special session for my Contracts and Advanced Contracts students.  It’s only about 20 or so minutes and afterward, we had a lively discussion about the pros and cons of arbitration.  We discussed the different purposes of arbitration and the pros and cons of arbitration where the parties are both businesses and where one party is a business and the other a consumer.  Many of the students had not heard about arbitration and didn’t know what it was.  Many of those who did know about arbitration didn’t know about mandatory arbitration or how the process worked.  Several were concerned about the due process aspects.  They understood the benefits of arbitration for businesses, but also the problems created by lack of transparency in the process.  I thought it was a very nice way to kick start a lively discussion about unconscionability, public policy concerns, economics and the effect of legislation on contract law/case law.

I think it’s important for law students to know what arbitration is and it doesn’t fit in easily into a typical contracts or civil procedure class so I’m afraid it often goes untaught.  The website also has pointers and ideas on how to organize a screening and discussion questions.

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Best Strategies for Arbitration.

27 Tuesday May 2014

Posted by Celia C. Elwell, RP in Arbitration

≈ Comments Off on Best Strategies for Arbitration.

Tags

Arbitration, Arbitrators, Cogent Legal Blog, Derek Ryan

The Best Strategies to Present Your Case In Arbitration, by Derek Ryan, Cogent Legal Blog

http://tinyurl.com/kpoutzw

Arbitrations are a great forum for the use of the graphics, animations and trial technologies. Depending on the arbitrator(s)’ familiarity with technologies, attorneys can often submit briefs, exhibit lists and other critical documents electronically.

Consider, too, the fact that arbitrations are usually held in meeting rooms smaller than most courtrooms. Having 70 boxes of exhibits in the arbitration room will make you feel surrounded by paper. The more you can digitize and display this material electronically, the better.

This post walks you through steps that will help you prepare and succeed at arbitration. The advice is based on my decade-plus experience working with attorneys and neutrals in mediation and arbitration. . . .

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Duty to Arbitrate Survives End of Employment Contracts.

05 Saturday Apr 2014

Posted by Celia C. Elwell, RP in 6th Circuit Court of Appeals, Arbitration, Arbitration, Collective Bargaining, Employment Contracts, Employment Law, Fair Labor Standards Act, United States Supreme Court

≈ Comments Off on Duty to Arbitrate Survives End of Employment Contracts.

Tags

Arbitration, Baker & Hostetler, Class Action, Employment Contract, FLSA, Gregory V. Mersol, Mortgage Loan Officers, U.S. Court of Appeals for the Sixth Circuit, U.S. Supreme Court

Sixth Circuit Holds That Duty To Arbitrate Survives Expiration Of Employment Contract, Requires Individual Arbitration, by Gregory V. Mersol, Baker & Hostetler

http://tinyurl.com/q7yg9s5

With the Supreme Court having issued a series of decisions overruling many of the roadblocks to the enforcement of arbitration agreements in the class context, we are now seeing more courts fill in the gaps as to whether and when employers may rely on such agreements.

The latest of these is the case of Huffman v. The Hilltop Companies, LLC, Case No. 13-3938 (6th Cir. Mar. 27, 2014), which concerned the question of whether the duty to arbitrate and limits to class arbitration extend beyond termination.  In one respect, the decision was obvious, but in another, it represents the growing, if at time reluctant, acceptance by courts of the enforceability of arbitration agreements. . . .

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Dropbox Is Making Changes.

21 Friday Feb 2014

Posted by Celia C. Elwell, RP in Arbitration, Clouds, Dropbox, Legal Technology

≈ Comments Off on Dropbox Is Making Changes.

Tags

Arbitration, Clouds, Dropbox, Dropbox Blog, ITProPortal, Jamie Hicks, Ramsey Homsany, Terms and Conditions

Dropbox Publishes New T&Cs That Anger Users, by Jamie Hicks, ITProPortal

http://tinyurl.com/phbdjk3

Dropbox has announced that it plans updates to its Terms of Service and Privacy Policy, effective March 24, 2014. Highlights of these changes are:

•     The addition of an arbitration section  has angered many of its users. Dropbox has provided an online form to opt out of this section 30 days after the new Terms of Service and Privacy Policy go into effect.

•     The Privacy Policy now contains Dropbox’s recently launched Government Data Request Principles. When you allow Dropbox access to your contacts, Dropbox says that it stores them so that you (and only you) can share with others more easily.

•     The Terms of Service and Privacy Policy has been revised to simplify its language and to explain its list of features.

The arbitration clause language added to the Terms and Conditions has generated the most criticism. (See Dropbox Blog @ https://blog.dropbox.com/2014/02/updating-our-terms-of-service/, posted by Ramsey Homsany. This section is viewed by its critics as designed to defeat class action litigation by urging users to opt out. -CCE

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U.S. Supreme Court’s “Instruction Manual” on Class Action Litigation.

11 Tuesday Feb 2014

Posted by Celia C. Elwell, RP in 9th Circuit Court of Appeals, Appellate Law, Arbitration, Class Actions, Class Certification, Consumer Contracts, Contract Law, Credit Repair, Employment Law, Litigation, United States Supreme Court

≈ Comments Off on U.S. Supreme Court’s “Instruction Manual” on Class Action Litigation.

Tags

American Express Co. v. Italian Colors Restaurant, Arbitration, AT&T Mobility LLC v. Concepcion, Class Action, Class Action Waiver Clauses, Class Certification, Comcast Corp. v. Behrend, Consumer Contracts, Credit Repair Organizations, Daniel P. Shapiro, Federal Arbitration Act, Inc. v. Dukes, Katten Muchin Rosenman LLP, Litigation, Oxford Health Plans LLC v. Sutter, Stolt-Nielsen S.A. v. Animalfeeds International Corp., U.S. Supreme Court, Wal-Mart Stores

Recent Developments For Litigation Risk Mitigation: The U.S. Supreme Court’s Prescription, by Daniel P. Shapiro, Katten Muchin Rosenman LLP  

(This piece is adapted from Daniel P. Shapiro’s article published in the November 2013, issue of AHLA Connections. © 2013 American Health Lawyers Association.)

Read Mr. Shapiro’s analysis of recent U.S. Supreme Court cases that have created an instruction manual of sorts for reducing litigation risks for American businesses, as stated below in the excerpt to his post.

There is a hyperlink at the end of the article that will take you to the original article. -CCE

 http://tinyurl.com/ldd7s2o

Over the past three years, since mid-2010, the Supreme Court has handed down a series of related decisions that, taken together, constitute an instruction manual for American business on how to reduce litigation risk. As the world has ‘flattened’ and trade has increasingly globalized and become borderless, it has been impossible to ignore that only in the U.S. economy is litigation such a prominent line item for business. This is particularly true with regard to class action litigation. No other country has the sort of class—or collective—action rules that the United States does. Perhaps in response to these facts, the Supreme Court has made it clear that through a combination of arbitration (as opposed to litigation) and class action waiver clauses properly used, businesses can contract out from under a great deal of litigation risk for the future and fundamentally change their litigation environment.

The new Supreme Court decisions offer instruction on how, exactly, to use arbitration clauses and class action waivers to mitigate litigation risk.

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Arbitration – Some Like It and Some Don’t.

06 Monday Jan 2014

Posted by Celia C. Elwell, RP in 9th Circuit Court of Appeals, Arbitration, Arbitration, Employment Law

≈ Comments Off on Arbitration – Some Like It and Some Don’t.

Tags

9th Circuit Court of Appeals, Arbitration, ContractsProf Blog, Employment Law, Kprofs2013, Wal-Mart

GLOBAL K: Contrasting Attitudes towards Arbitration Clauses, by Kprofs2013, ContractsProf Blog

 http://tinyurl.com/kpnbmhu

The recent discussion of the December 2013 decision by the Ninth Circuit in In re Wal-Mart Wage & Hour Employment Practices Litigation calls to mind the contrast in attitudes between international and domestic practice. Mention “arbitration” among international practitioners and profs, and you are likely to get a bit of a swoon from most – arbitration, properly structured, rescues us from the risks and uncertainties of unfamiliar legal systems and provides a comfort level in terms of predictability of process if not outcome. Mention “arbitration” in domestic circles, particularly with respect to consumer protection issues, and you encounter a growing skepticism if not outright hostility about the imposition of arbitration as an exclusive contract remedy.

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9th Circuit Snips, Then Replaces, California State Law Loophole in Compulsory Arbitration

29 Tuesday Oct 2013

Posted by Celia C. Elwell, RP in 9th Circuit Court of Appeals, Appellate Law, Arbitration, U.S. Courts of Appeal

≈ Comments Off on 9th Circuit Snips, Then Replaces, California State Law Loophole in Compulsory Arbitration

Tags

9th Circuit Court of Appeals, Arbitration, California

After Wavering, Ninth Circuit Snuffs Out ‘Broughton-Cruz’ Doctrine,
by Scott Graham, Connecticut Law Tribune

http://perma.cc/09CauXr6qZx

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