Okay, folks, we are still combating the summer slide here.  Today’s refresher rule is this: If an arbitrator fails to disclose a substantial relationship, the resulting award can be vacated under 9 U.S. C. 10 (a)(2).  But, not all relationships are substantial, as the cases today make clear.

Beginning in my backyard,  the appellant in Ploetz v. Morgan Stanley Smith Barney LLC, 2018 WL 3213877 (8th Cir. June 12, 2018), sought to vacate a FINRA arbitration award due to an alleged failure to disclose.  The chairperson disclosed that he was currently serving as an arbitrator in two other cases where Morgan Stanley was a party and had served in 8 previous cases involving Morgan Stanley or an affiliated company.  However, he did not disclose he had once served as a mediator in a case involving Morgan Stanley, and the FINRA rules require disclosure of past service as a mediator.  After the three-person panel dismissed appellant’s claims, she moved to vacate the award.  The district court denied the motion, and the 8th Circuit affirmed that result.  After noting the test for evident partiality is unclear in this circuit and refusing to clarify it (srsly??), the court found no evidence that the lack of disclosure “creates even an impression of possible bias.” Instead, the court found it “represented at most a trivial and inconsequential addition to that relationship.”  It also faulted appellant for failing to seek discovery into the earlier mediation.

The D.C. Circuit reached a similar result in Republic of Argentina v. AWG Group Ltd., 2018 WL 3233070 (D.C. Cir. July 3, 2018).  There, the losing party in arbitration (Argentina) argued the award should be vacated because one of the three arbitrators failed to disclose her service on a board of directors.  Three years into a twelve-year arbitration, this arbitrator was named to UBS’s board of directors, and UBS managed investments in two of the other parties in the arbitration (the “opposing parties”).  The arbitrator did not know of UBS’s investments, and they did not turn up in a conflict check run by UBS when she joined the board.  Argentina asked her to recuse due to her service on the UBS board, but the other arbitrators rejected the challenge.   After the award, both the district court and D.C. Circuit found this did not rise to the level of evident partiality.  Critically, while the arbitrator had “some degree” of interest in Argentina’s opposing parties, it failed to show she had a “substantial interest.”  In addition, there was no proof that the opposing parties had “more than trivial” import to UBS, a passive investor (though it had invested more than $2 billion).  The court raised public policy concerns about how many disqualifications and vacaturs could result if this type of financial relationship was sufficient to establish evident partiality.

In Certain Underwriting Members of Lloyds of London v.  Florida, 2018 WL 2727492 (2d Cir. June 7, 2018), the issue was what disclosure standards apply to party-appointed arbitrators.  In the reinsurance arbitration at issue, one party (ICA) had appointed Campos as its arbitrator.  Campos failed to disclose that he was president of a human resources firm that officed out of the same suite as ICA, and used a former director of ICA as a vendor, and had just hired a former director of ICA as its CFO.  The district court vacated the award based on evident partiality, citing the number and depth of relationships.  The Second Circuit remanded, finding that a different test should apply to party-appointed arbitrators.  It noted that reinsurers seek arbitrators with industry expertise, who are often “repeat players with deep industry connections”, and courts should be “even more indulgent” of undisclosed relationships for party-appointed arbitrators who are expected to serve as advocates.  Therefore, the Second Circuit followed the lead of four other circuits, and set a different standard for evident partiality by a party-appointed arbitrator.  It clarified that nondisclosure by a party-appointed arbitrator is only fatal if it violates the “contractual requirement” (here, “disinterested”) or “prejudicially affects the award.”  On remand, the district court must determine whether Campos was disinterested (had a personal or financial stake in the outcome) and whether his failure to disclose had a prejudicial impact on the award.

What could be a better subject for a Black Friday weekend post than the Cabbage Patch Kids??!  Especially if you are old enough to remember the 1980s…  Whether you loved or hated the smushed-face dolls, the point of this post is that the 11th Circuit confirmed an arbitration award in their favor, showing significant deference to the arbitrator.  Original Appalachian Artworks, Inc. v. Jakks Pacific, Inc., 2017 WL 5508498 (11th Cir. Nov. 17, 2017).

The dispute was between the company that owns the Cabbage Patch Kids (CPK) brand and a company to which it licensed the intellectual property during 2012-2014 (the licensee).  As the end of the license agreement was approaching, CPK selected a new company to receive the license in 2015, and let them get started creating the new line of toys, so that the new line could launch right away in 2015.  The licensee claimed that was a breach of the agreement and started an arbitration.

The arbitrator concluded that CPK had not breached the agreement and ordered that the licensee had to repay CPK over a million dollars in unpaid royalties.  The licensee moved to vacate the award.  Curiously, it made arguments under both the Georgia Arbitration Code and the FAA, and the 11th Circuit considered them all.  [Maybe showing that New Hampshire was onto something in declaring the FAA does not preempt state law on vacatur?]

Under the Georgia Code, the licensee argued the arbitrator had manifestly disregarded the law by ignoring the parol evidence rule (and accepting extrinsic evidence regarding the agreement).  [Manifest disregard is a statutory basis for vacatur under the Georgia act, unlike the federal act.]  The court found there was no concrete evidence that the arbitrator purposely disregarded the law, which is the standard.  Instead, the transcript and award showed the arbitrator had understood Georgia law as instructing that the purpose of contract interpretation is to effectuate the parties’ intent, and that’s what he tried to do in reviewing the extrinsic evidence.  So, even “assuming the arbitrator incorrectly applied the parol evidence rule,” the court found he “simply made a mistake.”  That does not rise to the level of manifest disregard.

Under the FAA, the licensee separately argued that the arbitrator had exceeded his powers.  After quoting the standard from Sutter, the court quickly concluded that because the arbitrator did interpret the parties’ contract, it does not matter “whether he got its meaning right or wrong,” the award must be confirmed.

A per curiam opinion from the 8th Circuit last week highlights that even if an arbitration goes off the rails, the only remedy is vacating (or confirming) the award.  The parties cannot recover from the administrator of the arbitration.

In Owens v. American Arbitration Association, Inc., 2016 WL 6818858 (8th Cir. Nov. 18, 2016), a terminated CEO filed for arbitration against his former company.  The AAA administrated the arbitration and a three member panel was chosen.  One of the arbitrators disclosed that he had been consulted in a different matter handled by the same firms that were representing the CEO and the company.  No party objected to that arbitrator’s continued involvement or asked follow up questions.

The panel issued an initial award of over $3 million to the former CEO.  At that point, the company moved to remove the arbitrator who had made the disclosure, alleging the disclosure was incomplete.  The AAA did not have a rule or published procedure for addressing the removal of an arbitrator.  It allowed the CEO to respond, but did not inform any of the arbitrators that a motion had been made or allow the arbitrator whose disclosure was at issue to respond.  The AAA eventually removed the arbitrator who made the disclosure, and the remaining two arbitrators issued a final award in favor of the CEO.

The company moved to vacate the award, and a state court trial judge granted the motion.  At that point, the CEO sued the AAA in Minnesota state court for “breach of contract, unjust enrichment, [and] tortious interference with contract.”  The AAA removed the case to federal court, and the federal district court dismissed the claims based on arbitral immunity.

On appeal, the 8th Circuit made quick work of this messy case.  It first recognized that arbitrators, like judges, have immunity.  And, that immunity can extend to “organizations that sponsor arbitrations” and all of the acts within the arbitral process.  Second, it cited a previous case in which the 8th Circuit concluded that “arbitral immunity bars claims against a sponsoring organization based on the appointment of a biased arbitrator.”  (Even if the organization failed to follow its own rules in appointing the arbitrator.)  Third, it extended that rule, concluding that the removal of arbitrators is also protected by arbitral immunity.

p.s. In honor of the all-Minnesota nature of this case, I give you a photo I took of the prize-winning giant pumpkins at the Minnesota State Fair.  Happy Thanksgiving!

Joining the Sixth and Third Circuit Courts of Appeals, the Fourth Circuit this week held that “whether an arbitration clause permits class arbitration is a gateway question of arbitrability for the court.”  Dell Web Communities, Inc. v. Carlson, 2016 WL 1178829 (4th Cir. Mar. 28, 2016).

At issue was whether a federal judge or an arbitrator would decide whether class arbitration was appropriate for claims of construction defects in “approximately 2,000” homes.  The individual arbitration agreements had no explicit language regarding the availability of class actions.  The district court had determined the arbitrator should  decide the availability of the class mechanism.

The Fourth Circuit reversed.  It reviewed recent case law from SCOTUS, noting that while the Court “has not conclusively told us who gets to decide whether an arbitration agreement provides for class arbitration,” it has provided plenty of hints that the issue should be presumptively for courts.  As a result, the Fourth Circuit declined to follow its own unpublished precedent, and remanded the case to the district court for a determination “whether the parties agreed to class arbitration.”

This is an important trend in putative class action cases where the plaintiffs have signed arbitration agreements.  Defendants now have three federal appellate decisions to cite in favor of the proposition that courts should decide whether a class is allowed.  Keeping those decisions in court will help build precedent regarding the type of language in arbitration agreements that can constitute an agreement to class actions.

 

A short new opinion from the Ninth Circuit may run counter to long-standing Supreme Court precedent. In Casa Del Caffe Vergnano v. Italflavors, 2016 WL 1016779 (9th Cir. Mar. 15, 2016), the court refused to enforce an arbitration agreement in a contract that the parties admitted signing, because the parties simultaneously signed a second agreement declaring the first one a sham.

The story is that two undocumented immigrants chose to become a franchisee of an Italian corporation, Caffe Vergnano, and open an Italian-style coffee shop in San Diego. They signed two contracts on the same day: a “commercial contract,” which was a standard franchise agreement including an arbitration clause; and a “hold harmless agreement” that said the commercial contract “does not have any validity” because it was designed simply to allow the immigrants to obtain visas to work in the U.S. The hold harmless agreement stated the parties “will sign a future contract which will regulate their commercial relationship.”

However, the parties did not enter into a new contract. Instead, the franchisees opened their Italian coffee shop and it folded within eight months. The franchisees sued the franchisor for violations of California statutes and the franchisor moved to compel arbitration. The district court compelled arbitration and the Ninth Circuit reversed.

Repeating language from Granite Rock that contract formation is for courts to decide, and relying on federal common law regarding contracts, a majority of the panel concluded that the commercial contract “was a mere sham to help Hector Rabellino obtain a visa” and was therefore unenforceable. The majority reasoned that the hold harmless agreement proved that the parties did not mutually consent to be bound by the commercial contract.

This decision raises a close question between formation and validity, in my view, that the court ignores completely. On questions of a contract’s validity, the severability doctrine, clarified in Buckeye Check Cashin, dictates that a party challenging arbitrability must “challenge[] specifically the validity of the agreement to arbitrate” in order to have that challenge heard by the court. Otherwise, the validity issue will be addressed by the arbitrator. SCOTUS found it was immaterial whether the challenge made the underlying contract void or voidable. In a footnote in Buckeye Check Cashing, however, SCOTUS excluded a limited set of formation issues from the severability doctrine, suggesting those still belong in court:

The issue of the contract’s validity is different from the issue of whether any agreement between the alleged obligor and obligee was ever concluded. Our opinion today addresses only the former, and does not speak to the issue decided in the cases cited by respondents (and by the Florida Supreme Court), which hold that it is for courts to decide whether the alleged obligor ever signed the contract, Chastain v. Robinson-Humphrey Co., 957 F. 2d 851 (CA11 1992), whether the signor lacked authority to commit the alleged principal, Sandvik AB v. Advent Int’l Corp., 220 F. 3d 99 (CA3 2000); Sphere Drake Ins. Ltd. v. All American Ins. Co., 256 F. 3d 587 (CA7 2001), and whether the signor lacked the mental capacity to assent, Spahr v. Secco, 330 F. 3d 1266 (CA10 2003).

Is the franchisee’s argument that the hold harmless agreement nullified the commercial contract really closer to an argument that the franchisee lacked mental capacity, and therefore belonged in court? Or is it closer to an argument that the commercial contract was fraudulently induced? In my view, that is a close call, but fraudulent inducement seems the better fit, meaning this decision belonged to the arbitrator. The line between formation and validity is not clearly drawn in FAA jurisprudence, and this decision blurs it further.

The primary purpose of this blog is to educate lawyers and clients about arbitration law. So, what better way to celebrate my fourth blogiversary than with an awesome new infographic about compelling arbitration! Making a motion to compel arbitration is trickier than it seems. When people call me for advice, I often have to tell them they missed a key analytical step. So, I worked with my firm’s marketing team and a graphic designer and came up with a one page pictorial summary of the analysis lawyers and judges should follow when they consider compelling arbitration – it starts with what court you should be in, and what law you should apply, identifies which issues are appropriate for courts to decide, and leads you through other key issues on a path either to arbitration or court. Now, some caveats. Of course I cannot put every nuance of 90 years of federal case law interpreting the Federal Arbitration Act on a single page (at least not while keeping it attractive). So, this infographic should be considered a big picture checklist to ensure you considered each of the major issues and are on the right track, and not a comprehensive list of everything you might possibly need to know. For the same reason, this picture cannot take the place of a real live lawyer, who knows something of the facts of your case and can give you case and jurisdiction-specific advice. Finally, if you end up in an English roundabout while following the arrows, going in circles instead of toward any destination, I advise you to try again without the cocktail or just give me a call. (Note: You’ll want to click on the infographic for a high resolution PDF version. It’s a bit small to read otherwise.) ** Have I succeeded in educating you or someone you know about arbitration? If so, please nominate my blog for the ABA Journal’s Blawg 100 list here. I would be honored to have ArbitrationNation recognized for a fourth consecutive year.

Decision Flowchart for Compelling Arbitration
Decision Flowchart for Compelling Arbitration (Select image to open a high resolution PDF.)
 

The Supreme Court of Missouri has issued two significant arbitration decisions in recent weeks, showing its willingness to sever any aspects of an arbitration agreement that it finds unconscionable (while enforcing the overall obligation to arbitrate).

First, in a contentious decision, the Supreme Court of Missouri found that a former employee of the St. Louis Rams football team does have to arbitrate his age discrimination claims, but he does not have to do so using the NFL Commissioner as the arbitrator. State ex rel. Hewitt v. Hon. Kristine Kerr, __ S.W.3d __, 2015 WL 2061986 (Mo. Apr. 29, 2015). The employment agreement incorporated rules stating the “Commissioner shall have full, complete and final jurisdiction and authority to arbitrate… any dispute between any player, coach, and/or other employee of any [team].” The court found that term unconscionable, because “[i]n effect, [] the commissioner is required to arbitrate claims against his employers.” (The team owners select the commissioner and determine his salary.) The decision has two full dissents and two partial dissents, but a majority of the court hung together for that gutsy decision. (Reading between the lines, the federal judge in the Adrian Peterson labor dispute appeared to agree that the Commissioner should not be arbitrating NFL employment disputes.)  Instead of invalidating the entire agreement to arbitrate, the Supreme Court of Missouri found that the state’s uniform arbitration act would provide the mechanism for appointing an arbitrator to decide the dispute.

More recently, in an uncontentious opinion, the Supreme Court of Missouri also refused to enforce an aspect of an arbitration agreement that it found unconscionable.  Eaton v. CMH Homes, Inc., __ S.W.3d __, 2015 WL 3387910 (Mo. May 26, 2015). In Eaton, a purchaser sued a seller for fraud and negligent misrepresentation. The seller sought to compel arbitration. The purchaser responded that the arbitration agreement was unenforceable, largely because it lacked mutuality. Both the trial court and the intermediate appellate court refused to compel arbitration. The Supreme Court of Missouri reversed.

Missouri’s highest court clarified that lack of mutuality in an arbitration agreement is not sufficient by itself to make the arbitration agreement unconscionable, but is a factor that courts should consider.  In doing so, the court confirmed that its recent Bristol Care decision (which refused to enforce an arbitration agreement in an employment agreement, finding it illusory and without consideration) is not as sweepingly anti-arbitration as some had feared. The court limited the Bristol Care decision to its unique facts: an arbitration agreement that was added by amendment to an existing contract without sufficient consideration and with an illusory promise in return. Even so, the court found that the lack of mutuality in the Eaton arbitration agreement, in combination with an “anti-waiver” provision (requiring the purchaser to arbitrate claims, even if those claims arose as counterclaims to a court action by the buyer), was unconscionable. Instead of refusing to enforce the entire arbitration agreement, the court found those terms were not essential to the agreement to arbitrate and severed them.

 

Let’s say your arbitration agreement calls for arbitration administered by JAMS under JAMS rules, but the arbitrator is independent and applies AAA rules, over one party’s objection.  A new decision from the Fifth Circuit says that is enough to vacate the resulting award.

In Poolre Insurance Corp. v. Organizational Strategies, Inc., __ F.3d__, 2015 WL 1566633 (5th Cir. April 7, 2015), there was a dispute between a self-insured company, the consultants that set up its insurance program (Capstone), and its reinsurer.  The arbitration agreement between the company and Capstone called for arbitration under the Commercial Arbitration Rules of the AAA, with venue in Delaware.  The arbitration agreement between the company and the reinsurer, on the other hand, called for arbitration by the International Chamber of Commerce (ICC), in Anguilla, with the arbitrator chosen by “the Anguilla [] Director of Insurance.” (Anguilla is in the British West Indies.  Why don’t I ever get to arbitrate somewhere exotic?  Maybe that’s the reward for being a reinsurance lawyer…)

Capstone started arbitration with the company at “Conflict Resolution Systems, PLLC” (CRS) in Houston, and Dion Ramos was named the arbitrator.  When the reinsurer inquired whether the Anguilla Director of Insurance could select the arbitrator, as required in the reinsurance contract, an Anguillan official explained that “no such official existed.”  (Sounds reminiscent of these cases...)  However, the Anguillan official designated CRS to select an independent arbitrator and administer the proceedings.  The company objected to the arbitrator’s authority, and the reinsurer intervened to request an arbitrator based in Anguilla.  Ramos found he had jurisdiction over all parties, and found the reinsurer waived its right to arbitrate in Anguilla by intervening.  The company continued to object, arguing that the arbitrator did not have the power to apply AAA rules to the reinsurance dispute.

Ramos found the reinsurer was properly joined in the arbitration.  On the merits, Ramos found the company breached its contracts with Capstone and the reinsurer and granted attorneys’ fees and expenses to Capstone and the reinsurer of about a half a million dollars.  Ramos denied all the company’s claims.

The reinsurer and Capstone moved to confirm the award and the company moved to vacate.  The Texas district court found Ramos exceeded his authority by exercising jurisdiction over the reinsurer and applying AAA rules to the reinsurance dispute. Because the inclusion of the reinsurer “tainted the entire process,” the district court vacated the award.

On appeal, the Fifth Circuit affirmed the district court’s decision to vacate the award.  The court noted that arbitration awards may be vacated when arbitrators “exceed[] the express limitations” of the contractual mandate, or act contrary to express contractual provisions.  Here, the Fifth Circuit found two separate bases for vacating the award.  First, the arbitrator-selection mechanism in the reinsurance contracts was not followed.  (In a footnote, the court acknowledged that the selection mechanism provided in the contract was not actually available, since there was no official with that title, but that the parties could have come to the court under Section 5 of the FAA and asked the court to appoint an arbitrator.)  Second, Ramos “acted contrary” to the requirement that the reinsurance disputes be arbitrated by the ICC under ICC rules.  The court found that was a “forum selection clause integral to the agreement” and therefore the arbitrator exceeded his power by applying AAA rules.  (Interestingly, the Fifth Circuit did not analyze the third basis that the district court used to support vacatur: the arbitrator’s decision to join all the parties to a single arbitration, although the company had not consented to consolidation.)

What are the lessons here for parties?  Here are at least two.  First, do not try to consolidate arbitrations that call for different administrators or different rules unless all parties agree.  And second, if you are going to specify an unusual arbitrator-selection process, make sure to put a “Plan B” in the contract.

Two other bits of arbitration news:

First, SCOTUS denied cert in one of the cases that refused to enforce an arbitration clause calling for arbitration before a Native American tribe.

Second, Delaware’s Rapid Arbitration Act officially became a law on April 3 and will go into effect in May.  Will Delaware businesses see the promise of speedy dispute resolution (max resolution time is 180 days by law) as enough of a benefit to give it a try? We may never know, as the process will be confidential…

It is generally accepted that courts may only engage in the very front and very back end of an arbitration. At the outset, courts may determine whether the parties agreed to arbitrate the dispute, and at the end, courts may determine if the arbitration met the basic fairness requirements of the Federal Arbitration Act.  However, in a 1973 case the Ninth Circuit had indicated there may be some “extreme” circumstances where mid-arbitration intervention was appropriate.  This week, the Ninth Circuit reversed a district court’s attempt to characterize an arbitration as one of those “extreme” cases and nearly disavowed its 1973 ruling creating the loophole.

In Sussex v. U.S. Dist. Ct. for D. Nevada, __ F.3d __, 2015 WL 327558 (9th Cir. Jan. 27, 2015), the underlying issue was whether the arbitrator had a disqualifying conflict of interest.  A single arbitrator was hearing three similar actions by condominium owners against the developer.  During the course of his service, the arbitrator founded a company to invest in “high-value, high-probability legal claims.”  The arbitrator did not disclose that investment activity, but the developer discovered it and moved the AAA to disqualify the arbitrator.  The AAA denied the developer’s request after the arbitrator said his investment company was “dormant”.

Undeterred, the developer moved the federal district court to disqualify the arbitrator and stay the arbitration.  The district court granted the motion.  It relied on Aerojet-General Corp. v. Am. Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973), which allowed for the possibility that court intervention in ongoing arbitrations may be appropriate in “extreme cases.”  The district court reasoned that the arbitrations were in their early stages, and that the developer would likely be able to vacate any resulting arbitration award based on evident partiality.  The partiality came from the potential that a large financial award for the condominium owners could help the arbitrator promote his company.

On appeal, the Ninth Circuit issued a writ of mandamus, instructing the district court to vacate its disqualification of the arbitrator.  It noted that no court after Aerojet had approved of a mid-arbitration intervention and that a majority of circuit courts “expressly preclude” such intervention.  It found that the district court had clearly erred in its arbitration analysis.  In particular, the district court erred in predicting any award from the arbitrator would be vacated due to evident partiality.  Because there was no “direct financial connection” between the arbitrator and any party or law firm involved, and instead only an attenuated and potential relationship, the Ninth Circuit found insufficient grounds for vacatur.

More interesting, the court found that even if the connection was sufficient to establish evident partiality, that would not be the type of “extreme case” envisioned in Aerojet.  The increased cost and delay associated with a vacated arbitration award are “manifestly inadequate to justify a mid-arbitration intervention.”

This is a hard arbitration pill to swallow.  If a party is convinced that it has a solid basis under the narrow provisions of FAA Section 10 to vacate the arbitration award in its proceeding, and the arbitral venue does not eradicate that basis, this case stands for the proposition that the party has to simply continue through the end of the arbitration, go through the process of vacating the award (and the likely appeal), and then decide whether it wants to re-arbitrate the dispute.  The result drives home the point that the point of the FAA is not efficient resolution of disputes, but enforcing arbitration agreements.

Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award?  That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law.

The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine University School of Law conducted recently.  He obtained responses from 134 highly experienced arbitrators –most of them had arbitrated more than 100 disputes in their career — to a range of questions.  And the results dispel some myths about arbitration.

Here’s another myth-buster: less than 1% of these arbitrators refuse to rule on motions for summary judgment.  Instead, about 70% of these arbitrators say they “readily” rule on dispositive motions.

A less surprising statistic is this one: 91% of responding arbitrators “usually” or “always” work with counsel to limit discovery, and 94% “usually” or “always” encourage the parties to limit the scope of discovery.  Here’s another non-shocker: 75% of these arbitrators generally “receive virtually all non-privileged evidence and discourage traditional objections (hearsay, foundation, etc.).”  Experienced arbitrators are proactive case managers in other ways as well, with the great majority requiring parties to submit a core collection of joint exhibits for the hearing, limiting duplicative testimony, and telling counsel when a point has been understood and “they can move on.”  (That is always an awkward moment.)

So, if there is a lull in conversation this Thanksgiving, you can shake things up by asking: “Did you know that most people choose to serve as arbitrators because they see it as a form of public service and a logical extension of their professional practice?”  I am sure that will receive just as welcome a reception as my recent query at a dinner party: “Tell me, what is your preferred method of judicial selection?”  [My husband won’t let me live that one down.]

***

Other interesting arbitration news and notes.

The DC Circuit ruled last week that FOIA does not require the Securities and Exchange Commission to turn over documents it collected while examining FINRA’s arbitration program.  Public Investors Arbitration Bar Assoc. v. SEC, __ F.3d __, 2014 WL 5904725 (D.C. Cir. Nov. 14, 2014).  An organization of lawyers who represent individual investors in FINRA disputes had requested those records.

The NLRB won’t go down without a fight on its controversial D.R. Horton ruling, which held that federal labor laws do not allow employers to force employees to give up class actions in arbitration.  In a late October opinion it wrote “we have carefully considered, and fully addressed, the views of both the Federal appellate courts that have rejected D.R. Horton and the views of our dissenting colleagues.  We have no illusions that our decision today will be the last word on the subject, but we believe that D.R. Horton was correctly decided, and we adhere to it.”

Finally, as of this month, the College of Commercial Arbitrators has its first female President, Deborah Rothman.  Cheers!