I don’t mean to be imprecise, but I think that the Eleventh Circuit may have recently issued the most luddite opinion I’ve seen in a good long while. See Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 2019 WL 4464301 (11th Cir. Sept. 18, 2019). According to the court, Section 7 of
discovery
International Commercial Arbitration Does Not Constitute a “Foreign or International Tribunal” for Purposes of 28 U.S.C. § 1782, According to District Court
By Henry Allen Blair on
Posted in Arbitration Rules/Procedures
Discovery in international arbitrations can be controversial for a lot of reasons. The District Court for the District of South Carolina recently added another one to the list in In re Servotronics, Inc., No. 2:18-MC-00364-DCN, 2018 WL 5810109 (D.S.C. Nov. 6, 2018). The case addresses a very practical question: does 28 U.S.C. § 1782…
Hawaii Finds Arbitration Agreement With "Severe Limitations on Discovery" is Unconscionable
By Liz Kramer on
Posted in Validity of Arbitration Agreement
Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it prohibited both discovery and punitive damages. Narayan v. The Ritz-Carlton Dev. Co., Inc., __ P.3d __, 2015 WL…
First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months
By Liz Kramer on
Posted in Uncategorized, Waiver of Right to Arbitrate
We haven’t had a good waiver case in a while. The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either). It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court…
New Survey Dispels Common Myths About Arbitration
By Liz Kramer on
Posted in Litigation vs. Arbitration
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…
Third Circuit Finds Two Months of Litigation Sufficient to Waive Right to Arbitrate
By Liz Kramer on
Posted in Waiver of Right to Arbitrate
In a decision this week, the Third Circuit found two related parties had waived their right to arbitrate claims. One was no suprise — it had vigorously litigated the dispute for eleven months. But the second may have been simply guilty by association, as it had only litigated for two months. Supermedia v. Affordable Electric…
Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability
By Liz Kramer on
In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin to summary judgment, but the FAA states in Section Four: “If the making of the arbitration agreement or the…
ArbitrationNation Roadmap: When Should You Choose JAMS, AAA or CPR Rules?
By Liz Kramer on
Posted in ArbitrationNation Roadmaps (primers)
Albert Einstein supposedly once said “you have to learn the rules of the game. And then you have to play better than anyone else.” In arbitration, that means figuring out which organizations’ rules are best suited for your arbitration clause. This post is designed to help drafters make that decision by giving a quick and…
Third Circuit Clarifies When Additional Discovery Must Be Allowed On Arbitrability
By Liz Kramer on
Posted in Validity of Arbitration Agreement
In an opinion that feels a bit like a report from the annual meeting of arbitration nerds, the Third Circuit last week clarified when district courts must allow discovery about arbitrability. Guidotti v. Legal Helpers Debt Resolution, LLC, ___ F.3d ___, 2013 WL 2302324 (3d Cir. May 28, 2013). Although the standard articulated is a…
Defendant Did Not "Waive" Goodbye to Arbitration Despite Litigating For 6 Months
By Liz Kramer on
Posted in Class Arbitration, Waiver of Right to Arbitrate
In contrast to recent decisions from other circuit courts, the Fourth Circuit found a defendant did not waive its right to arbitrate, despite litigating for more than 6 months and conducting discovery. Rota-McLarty v. Santander Consumer USA, Inc., __ F.3d __, 2012 WL 5936033 (4th Cir. Nov. 28, 2012).
In this potential class…