The Fifth Circuit just released an opinion reversing a district court’s vacatur (link is to .pdf file) of an arbitral award in the collective bargaining context. The opinion sets out the standard of review for arbitral awards when the arbitration is established by the collective bargaining process. Since this is an area in which we do not practice, I’m not offering any detail or analysis, but the opinion seemed worth noting. Resolution Performance Prod., LLC v. Paper Allied Industrial Chemical and Energy Workers International Union, ___ F3d ___ (5th Cir. 2007) (Cause No. 05-30813) Technorati Tags: arbitration, ADR, Fifth Circuit, law
Continue reading...This morning, the Texas Supreme Court handed down opinions in six cases; none had anything to do with arbitration. In an opinion on interlocutory appeal of an order certifying a class, Citizens Ins. Co. of America, et al. v. Daccach, et al., the Court decertified a class and remanded the case to the trial court. The case is a potential class action involving alleged violations of the Texas Securities Act. Moki Mac River Expeditions v. Drugg involves a discussion of specific personal jurisdiction in Texas. City of Galveston v. State of Texas marks the first time, according to the Court, that the State of Texas has sued one of its cities for money damages. Can it do that? You’ll have to read the opinion. The other three opinions are short and per curiam, and involve issues relating to writs of executions based on default judgments, the segregation of unrecoverable attorneys’ fees from recoverable attorneys’ fees, and preservation of error. We’re mighty busy around here, so I’m afraid I can’t tell you any more. Technorati Tags: arbitration, Texas Supreme Court, law
Continue reading...This morning, the Third Court of Appeals issued an opinion in a procedurally complex case stemming from a group of hairstylists’ claim in quantum meruit that Supercuts failed to pay them for work done “off the clock.” The case was originally filed as a breach of contract class action in 1993; this morning’s opinion marks the fourth time the Third Court has written on it. The opinion spends a large amount of time reciting the unusual and complex procedural history; I will not recap it here. The single issue resolved this morning, however, has to do with the potential interlocutory appeal of orders certifying or refusing to certify a class, and the circumstances under which a party may be excused for failing to file its notice of appeal on time. It will likely be extremely useful for anyone who has a case in which the timing of the notice of appeal is an issue, or in which there is uncertainty as to which interlocutory order a party seeks to appeal. Rainbow Group v. Wagoner, et al., ___ S.W.3d ___ (Tex. App. – Austin 2007) (Cause No. 03-06-00138-CV) Technorati Tags: litigation, Third Court of Appeals, law
Continue reading...Frequent guest commenter Rick Freeman made an important point yesterday in a comment to our post on the Apache v. Texaco case. Rick said, commenting not only on the Apache case but also on our post about Sen. West’s proposal that information about arbitrations be compiled: Instead of a statute that says the decisions will be compiled, why not one that says that, in true arms length negotiated arbitration agreements, taxpayer financed Texas courts have NO jurisdiction to alter the arbitrator?s ruling. They only have jurisdiction to enforce it. This comment highlights the critical distinction between arbitrations of the sort Apache and Texaco had, and arbitrations of the sort which Sen. West wants to start tracking. The Apache v. Texaco case involved a sophisticated transaction between enormous corporate parties who wanted to jointly explore for oil under the Bohai Bay in China. One imagines fleets of lawyers poring over every detail of the contract over which Texaco eventually sued in arbitration. In contrast, Sen. West’s proposal would only require the tracking of arbitrations conducted in consumer and employment cases, and it excludes a large segment of consumer arbitration, that is claims by homeowners against builders. In other words, Sen. West only proposes that the State track arbitration which is conducted pursuant to “take it or leave it” arbitration agreements. By way of example, your credit card agreement has an arbitration clause in it. As a credit card consumer, your options are: 1) be subject to the arbitration agreement; or 2) do not use the credit card (or any credit card, as a practical matter). This is a “take it or leave it” agreement to arbitrate, and it is quite common in consumer transactions and employment relationships. When we talked about parties negotiating appellate review into arbitration agreements, therefore, we really meant in the context of sophisticated parties negotiating a commercial transactions. Consumers and employees do not negotiate the arbitration clauses in their lives; they take them or leave them. On the flip side, however, if those consumers and employees end up winning an arbitration, a well-developed body of case law tells them that their arbitral award ought to be easier and faster to uphold and enforce than a jury verdict. Large companies who impose arbitration on consumers and employees ought not to be able to later complain if the results in arbitration are not to their liking. Large companies dealing with other large companies, however, already have the ability to create some sort of right to complain at the front-end, when the agreement is being negotiated. Without intending to, we seem to have highlighted this important schism in the world of arbitration yesterday. In the future, when waxing about arbitration generally, we will try to be more careful in distinguishing between commercial, negotiated arbitration agreements and consumer/employment arbitration. Thanks, Rick, for your comments. Maybe we do in fact need separate bodies of arbitral law for commercial disputes and consumer disputes. Technorati Tags: arbitration, ADR, law
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.