The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL 5503393 (Haw. Oct. 31, 2014). The parties can either jointly agree to a forum, or the court will
The Tenth Circuit ruled last week that arbitration case law from New Mexico is preempted by the FAA. This decision calls into question whether states can find arbitration agreements unconscionable simply for being unilateral, i.e. one party is bound to arbitrate its claims while the other party is free to litigate in court.
In 2012,
You hear more about Lena Dunham than you expect, given the audience for “Girls”, right? (Read this article for more.) The same is true, or should be true, for the contract defense of illusoriness. After decades of disuse, it is popping up more and more often as a defense to the enforcement of arbitration clauses
Three federal circuit courts have recently looked at the shelf-life of an arbitration agreement. Can it apply even before the contract is effective? What about after a successor takes over the relationship? What if one party unilaterally changes its terms? The answer is that a properly worded arbitration agreement can apply in all those instances,
Applying Texas law, the Fifth Circuit recently found that an employer cannot compel arbitration under an agreement that gives the employer the right to unilaterally change the terms of the agreement. Carey v. 24 Hour Fitness, USA, Inc., __ F.3d __, 2012 WL 205851 (5th Cir. Jan. 25, 2012).
The employee in the case