“The patient was age 53 when he was transferred to Kindred Hospital. He had been diagnosed with multiple sclerosis and bipolar disorder in his twenties. When he signed the arbitration agreement in issue, he had required 24-hour nursing care for the previous 13 years, although he was not cognitively impaired at the time of the signing.” reports the Law Office of Donald D. Vanarelli in their blog.

“After he filed a negligence suit regarding pressure ulcers he had developed, the hospital filed a motion to dismiss his complaint and compel arbitration, based on the arbitration agreement the patient had signed. The hospital’s motion was denied, and an appeal was filed. On appeal, the Appellate Division affirmed.”

The appeals court noted “The arbitration agreement was not explained to him; he was only told to sign all the documents. He did so, including the “voluntary” arbitration agreement. Every document was signed within the span of one minute. The arbitration agreement stated that his signature was not a precondition to treatment, and that he could cancel it within 5 days; however, he was not provided a copy of the arbitration agreement.”

Read the article.

Brett Marston of Gentry Locke has been selected by the American Arbitration Association (AAA) to serve as an arbitrator on its Construction Panel. In addition to his role at the firm, Marston will handle AAA arbitration on construction-industry disputes.

The not-for-profit American Arbitration Association (AAA)-International Centre for Dispute Resolution (ICDR) is the largest private global provider of alternative dispute resolution services in the world. The AAA-ICDR aims to move even the most complicated, multi-faceted cases through mediation and arbitration fairly and cost effectively, with the goal of getting parties back to business as soon as possible. The AAA-ICDR Roster of Arbitrators and Mediators is composed of distinguished former judges and leaders in the legal and business communities with industry-specific knowledge and expertise.

Marston chairs the firm’s Construction Law practice group and has experience in construction contract negotiations and preparation, payment disputes, mechanic’s liens, bond claims, construction defects, delay claims, insurance and OSHA matters. He handles construction matters in federal and state courts, arbitration and mediation for general contractors, subcontractors, owners, design professionals and suppliers.

Marston was inducted into the Virginia Law Foundation Fellows Class of 2019, and is consistently selected for inclusion in the annual Virginia Super Lawyers list, has consecutively made their Virginia “Top 10” and “Top 100” lists, and has thrice been named Roanoke Lawyer of the Year for Construction Law by The Best Lawyers in America. Marston was named to the 2018 class of “Leaders in the Law” by Virginia Lawyers Weekly.

He earned his B.A. from the University of Virginia and his J.D., with distinction, from the George Mason University School of Law.

Careful drafting of employment arbitration agreements due to the U.S. Supreme Court’s decision affecting an employer’s ability to enforce such agreements is critical, warn Art Silbergel and Kacey Riccomini in a post on Thompson Coburn’s website.

The publication states “In the interim, employers and their counsel need to carefully consider options in drafting arbitration agreements that address the new law that may help in compelling a court complainant to arbitrate the claims. Anyone creating, revising or reviewing agreements to arbitrate employment disputes should consider” their 23 tips.

Read the article.

A former Skadden attorney is suing Sullivan & Cromwell for legal malpractice, claiming that the firm represented a client in a matter for which one of its partners had once been an arbitrator, in violation of ethics rules, reports Bloomberg Law.

The plaintiff, Andrew Delaney, claims that Sullivan & Cromwell acted “unlawfully” and “unethically” in the international arbitration matter, according to Bloomberg’s Melissa Heelan Stanzione.

“The Harvard Law School graduate’s complaint alleges that Sullivan & Cromwell partner James H. Carter chaired an arbitration panel that found in favor of Delaney’s clients, and the firm subsequently “proceeded to represent the losing party” to oppose enforcement of the award,” Stanzione writes.

Read the Bloomberg Law article.

The Eight Circuit has rejected a plaintiff’s claim that an arbitration clause in a retainer agreement she signed with a law firm was unconscionable, according to Carlton Fields’ Reinsurance Focus.

The plaintiff claimed she had received a call from a purported agent of the firm informing her of a purported life-threatening medical condition, leading her to have surgery that she considered to be less than successful. She sued the law firm and other defendants, and the firm sought to compel arbitration pursuant to a retainer agreement.

The district court found the arbitration agreement was unconscionable and refused to compel arbitration. Despite acknowledging that the circumstances that gave rise to this lawsuit were “troubling,” the Eighth Circuit determined that the retainer agreement was not procedurally unconscionable.

Read the article.

The U.S. District Court for the Northern District of Texas compelled arbitration in a putative Fair Labor Standards Act class action based on language in a “notice to employees” that put the plaintiffs on notice that they were agreeing to arbitrate claims in an incorporated (and hyperlinked) arbitration agreement, according to Carlton Fields; Reinsurance Focus.

Author Brendan Gooley adds that the court also rejected various other defenses to arbitration raised by the plaintiffs in an attempt to avoid arbitration.

The court found that the notice to employees contained sufficient language to incorporate the arbitration agreement by reference, and the notice to employees was also clear on that point.

Read the article.

U.S. District Judge William Alsup of San Francisco has berated lawyers for big tech companies before, and now an attorney for DoorDash found himself the target, reports the San Francisco Chronicle.

The issue was the way the meal-delivery startup pushed its couriers into arbitration, writes the Chronicle‘s Mallory Moench.

Courthouse News Service describes an exchange Alsup had with DoorDash lawyer James Fogelman, of Gibson Dunn & Crutcher:

“Your law firm and all your firms have tried for 20 years to keep plaintiffs out of court, and you’ve gotten a lot of success in the courts,” U.S. District Judge William Alsup said. “Then someone says, ‘OK. We’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling away, trying to find a way to squirm out of your agreement.”

DoorDash had been ordered to pay more than $11 million in arbitration fees.

Read the SF Chronicle article.

The American Arbitration Association and the International Centre for Dispute Resolution have published the results of of survey of more than 400 arbitrators who issued awards for large, complex commercial cases about the various elements of those cases, from motion practice and discovery to cooperation among participants.

A report on the survey is available for downloading at no charge.

The survey revealed exactly how attorneys and their clients negatively affect the efficiency and cost effectiveness of their cases—and the best practices they can adopt to improve.

Download the report.

Construction disputes often involve voluminous amounts of discovery, including documents in the hand of third parties, points out Matthew DeVries in Burr & Forman’s Best Practices Construction Law blog.

If the case is subject to arbitration, it is likely there will be a dispute about whether the arbitrator has the authority to compel production of third-party documents or witnesses for deposition, he writes.

DeVries discusses a case in which the 11th Circuit  concluded that Section 7 of the Federal Arbitration Act precludes all pre-hearing discovery from non-parties.

Read the article.

The 2019 Texas legislature enacted a new Property Code Section 5.152 to protect mineral and royalty owners from a certain species of fraudulent transactions perpetrated on trusting and/or naïve and/or out of state mineral owners, reports Charles Sartain in Gray Reed’s Energy & the Law blog.

The change is meant to address a scam in which someone “fronting for a company with a name similar to a reputable operator, would approach the owner with an oil and gas ‘lease’ of minerals or royalty that were already subject to an existing lease. Except that the lease was actually the sale of the mineral or royalty interest at a bargain price.”

The article lists the changes addressed by the new section.

Read the article.

A California Court granted a defendant’s motion to compel arbitration based on a duly formed and consented arbitration clause via a “clickwrap” agreement, despite the plaintiff’s argument that no contract was ever formed because the purpose of the contract was to facilitate the selling and distribution of marijuana, which is illegal under federal law.

A post by Womble Bond Dickinson describes a case in which the defendant was hit with a putative class action in California federal court claiming it violated the Telephone Consumer Protection Act.

The defendant’s terms of service, which were hyperlinked in the sign-up box, contained a clause providing for arbitration of disputes with a class-action waiver.

Read the article.

To reduce the risk of a class action disrupting business operations and impacting revenue, businesses may want to consider including arbitration clauses in their employment and consumer agreements, advises Patrick K. Burns in a blog post for PilieroMazza PLLC.

Many businesses include arbitration clauses in employment and consumer agreements in an attempt to shield themselves from class action lawsuits, he explains. “The success of these types of clauses in accomplishing the same largely depends upon its wording, the respective jurisdiction, and the nature of the underlying agreement.”

In his post, he demonstrates how, if class arbitration is not explicitly addressed in an arbitration agreement, it cannot be compelled.

Read the article.

The U.S. District Court for the District of the Virgin Islands recently compelled arbitration after concluding that a personal guaranty incorporated an arbitration agreement from an underlying contract and rejecting various arguments to the contrary, reports Carlton Fields’ Reinsurance Focus.

The case involved a leasing agreement that contained an arbitration provision, but the personal guaranty did not. The personal guaranty did, however, provide that the “performance of any and all financial obligations of the Lessee to the Lessor … subject to the terms and conditions contained in the … Leasing Agreement.”

The court found that the plain language of the personal guaranty incorporated the arbitration provision from the leasing agreement.

Read the article.

Bloomberg Law reports that law students from elite universities protested outside DLA Piper offices in three cities Oct. 10, calling on the firm to drop arbitration agreements from employee contracts.

“Demonstrators from Harvard, Columbia, NYU and Georgetown law schools handed out leaflets in New York, Washington, and Boston,” writes Bloomberg’s Stephanie Russell-Kraft. “They’re part of a student-led initiative leveraging their status as top Big Law recruits to fight what they says is ‘harassment and discrimination in the legal profession.’”

DLA Piper partner Vanina Guerrero, who claims she was sexually assaulted and retaliated against by a fellow partner, said she is unable to bring those claims in court because of a mandatory arbitration agreement.

Read the Bloomberg Law article.

The California Supreme Court invalidated a mandatory arbitration agreement involving a former employee’s wage claims, finding the agreement was both procedurally and substantively unconscionable, according to a Ford Harrison post by partner Frederick L. Warren.

“The Court found that the arbitration agreement’s execution involved a high degree of procedural unconscionability,” explained Warren. “The Court stated that ‘the agreement appears to have been drafted with an aim to thwart, rather than promote, understanding.'”

Read the article.

Three recent court decisions raise a few issues to keep in mind for employers to keep in mind when drafting arbitration agreements for employees, according to a post on Bradley Arant Boult Cummings’ Labor & Employment Insights blog.

The authors, Bridget Warren and Anne R. Yuengert, discuss the common characteristics that an agreement should include.

They also advise drafters to include class and collective action waivers and how to update existing agreements to include such a waiver while a lawsuit is pending.

Finally, they advise paying attention to state laws that affect what can be included in the arbitration agreement.

Read the article.

A post in the Burns Levinson In-House Advisor blog takes a look at the use of multi-tiered pre-litigation dispute resolution clauses in contracts.

Author Shepard Davidson writes that the theory behind such mechanisms “is straight-forward and quite laudable: if the parties can resolve a dispute without resorting to litigation or arbitration, they likely will save themselves a lot of pain, anxiety and, most of all, money. In reality, however, forcing people to engage in settlement discussions may actually cause one party or the other to lose substantive rights.”

He concludes that forcing parties to engage in a process that only can work if all of them want to participate seems unlikely to result in anything other than delay and added expense.

Read the article.

A recent federal court decision reminds employers that an employee’s electronic acceptance of an arbitration agreement may not, by itself, be enough to prove that the employee has agreed to arbitrate, points out Stokes Wagner post.

In Shockley v. PrimeLending, the U.S. Court of Appeals for the Eighth Circuit recently affirmed the lower court’s decision to deny the employer’s motion to compel arbitration where the arbitration agreement was signed via the employer’s automated intranet system.

The author, Jordan A. Fishman, discusses the reasons that acceptance via intranet system was insufficient.

Read the article.

Law firm Dentons Europe LLP won Delaware court approval to have a former client’s $92 million arbitration award seized so that it can be paid for its legal services, reports Bloomberg Law.

The firm sued its former client, Customs and Tax Consultancy LLC (CTC), after CTC allegedly failed to pay for legal fees accrued in its arbitration victory against the Democratic Republic of the Congo.

The court sided with Dentons’ effort to get paid for its legal fees by having the court authorize arbitration award broker ClaimTrading Ltd. to seize the award and market it on behalf of CTC, explains Bloomberg’s Leslie A. Pappas.

Read the Bloomberg Law article.

The U.S. Chamber of Commerce and other business and employer groups have just submitted amicus briefs calling on the 9th Circuit to reconsider decisions that, in the views of these amici, eviscerate mandatory arbitration provisions, writes Alison Frankel in a Reuters report.

The briefs come in the wake of the 9th Circuit’s June 28 rulings in which plaintiffs claimed they couldn’t be forced into arbitration because they sought injunctions against corporate defendants.

The court found that because California’s policy of allowing consumers to pursue public injunctions does not specifically obstruct arbitration, it’s not precluded by the Federal Arbitration Act.

Read the Reuters article.