by Holly Hayes The Austin-Ameircan Statesman reported this week Austin Regional Clinic (ARC) and Seton, two of the largest health care providers in Central Texas, are creating an “Accountable Care Organization (ACO), a collaboration of doctors, clinics and hospitals seeking to coordinate care so that patients receive more attention, especially patients with chronic conditions such as diabetes”. Since enactment of the 2010 federal health care law, Accountable Care Organizations have become one of the newest buzzwords in medical care. On Monday, U.S. Secretary of Health and Human Services Kathleen Sebelius announced the creation of 32 Pioneer Accountable Care Organizations around the country for Medicare patients. They could save up to $1.1 billion over five years, she said. The Seton/Austin Regional partnership, called the Seton Health Alliance, is one of two approved in Texas. The other is North Texas Specialty Physicians and includes doctors in Tarrant, Johnson and Parker counties. Dr. Norman Chenven, CEO and founder of Austin Regional Clinic, said communication between patients and health care providers is expected to improve under the arrangement. The system will use information technology to “make care more organized and more focused” on the individual, he said. “We will hire nurses and staff to contact each patient and go over what they need. … I think this is the way health care will be practiced in the future.” Atul Gawande, a surgeon at Boston’s Brigham and Women’s Hospital and a staff writer for The New Yorker has said, “The lesson of the high-quality, low-cost communities is that someone has to be accountable for the totality of care. Otherwise, you get a system that has no brakes.” As it relates to our practice of conflict engagement in healthcare, Joe Swedish, President and CEO of Trinity Health states, “The compelling point is that an ACO is not an entity, but rather a set of competencies and relationships that are foundational for transformation of care delivery.” Over the next few weeks, we will focus on the successful creation of the relationships that are the foundation of the ACO model. Technorati Tags: Healthcare Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.

Continuing our 2011 Year-End Highlights series, we present today noteworthy arbitration cases heard by the Texas Supreme Court. On February 27, 2011, the Texas Supreme Court denied cert to a case where agreement required arbitrator to be Saudi National or Muslim Foreigner. In In re Aramco Services Co., No. 01-09-00624-CV, (Tex. App. – Houston [1st], March 19, 2010), DynCorp International, LLC and Aramco entered into a contract for a computer system which was to be manufactured in the U.S. and installed at Aramco’s offices in Saudi Arabia. The contract contained a Saudi “Choice of Law” provision and an arbitration clause which required an arbitrator to be “a Saudi national or a Moslem foreigner.” Read more here. In February, the Texas Supreme Court heard oral arguments in CMH Homes, Inc. et al. v. Perez, No. 10-0688. At issue in this case of first impression is an interlocutory appeal from an arbitration order filed pursuant to Section 51.016 of the Texas Civil Practice and Remedies Code. Read more here. On March 11, 2011, the Supreme Court of Texas held that parties to an arbitration agreement may grant non-signatories the right to compel arbitration. In In re Rubiola, No. 09-0309, (Tex., March 11, 2011), Brian and Christina Salmon agreed to purchase a home from Greg and Catherine Rubiola with J.C. Rubiola acting as listing broker for the transaction. Brothers Greg and J.C. Rubiola jointly operate a number of real estate and mortgage companies in San Antonio, including Rubiola Management, L.L.C. and Rubiola Mortgage Company. Read more here. On April 1, 2011, the Supreme Court of Texas held in a per curiam opinion that the Texas General Arbitration Act (TAA) applied to a dispute where a party invoked the TAA in a hearing on a motion to compel arbitration and no evidence was offered to show the TAA did not apply despite that the motion itself failed to invoke the act. Read more here. On May 13, 2011, the Supreme Court of Texas held that the Texas General Arbitration Act (TAA) allows judicial review of arbitral awards by agreement beyond what the Federal Arbitration Act (FAA) allows. In Nafta Traders, Inc. v. Quinn, No. 05?07?00340 (Tex., May 13, 2011) Nafta, an international re-distributor of athletic apparel and footwear, challenged a $200,000 arbitration award to Quinn on her sex-discrimination and retaliation claims. An arbitration provision in the company’s employee handbook barred arbitration awards that contained reversible legal error or that applied a cause of action or remedy not expressly provided by law. However, the arbitration section did not indicate whether state or federal law would apply, providing only that “[a]ll proceedings shall be conducted in the City of Dallas, State of Texas.” Quinn argued that federal arbitration law controls, which, under the U.S. Supreme Court’s decision in Hall Street v. Mattel Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008) does not allow judicial review to be expanded by agreement beyond what the federal arbitration statute provides. Read more here. On May 27, 2011, the Texas Supreme Court held that Texas Civil Practice and Remedies Code Section 51.016 does not allow an interlocutory appeal of an order appointing an arbitrator.In CMH Homes,et al.v. Adam Perez, No. 10-0688 (Tex., May 27, 2011), Adam Perez purchased a manufactured home from CMH Homes , Inc. from salesman Bruce Robinson Moore, Jr. and Vanderbilt Mortgage and Finance financed the purchase. Read more here. Technorati Tags: arbitration, ADR, law

During this year, the U.S. Court of Appeals for the Fifth Circuit decided the following arbitration cases: On July 22, 2011, the Fifth Circuit denied a motion to compel arbitration in multi-billion-dollar ponzi scheme case. In Janvey v. Alguirre, No. 10-10617 (5th Cir. July 22, 2011) the Securities and Exchange Commission (“SEC”) brought suit against the investment company Standford Group Company (“SGC”) and related entities for allegedly perpetrating a massive Ponzi scheme. Read more here. On August 4, 2011, the Fifth Circuit held that corporate officers are not bound personally by an arbitration agreement and overturned an arbitral award. In DK Joint Venture 1 v. Weyand, No. 09-11000 (5th Cir. August 4, 2011) six business entities (the “plaintiffs”) filed an arbitration demand against Richard Weyand and Peter Theiessen and fifteen corporations controlled by them (the “defendants”). Weyand and Thiessen were respectively the chief executive officer and chief financial officer. The plaintiffs alleged that defendants committed fraud, breach of contract, and breaches of fiduciary duty in order to induce their investment of money in a purported oil and gas venture. Read more here. On August 10, 2011, the U.S. Court of Appeals for the Fifth Circuit held that corporate officers did not personally agree to arbitrate and were not bound by an arbitration agreement. Covington v. Aban Offshore, No. 10-40449 (5th Cir. August 10, 2011) involves a dispute between Aban Offshore Limited (“Aban”), owner of an oil rig, and Guy Covington and Russell Covington, officers and employees of Beacon Maritime, Inc. (“Beacon”) a contractor hired to refurbish the rig. In 2005, Guy, as Vice President and on behalf of Beacon, executed a contract with Aban. Russell did not sign it at all. Read more here. On September 15, 2011, the Fifth Circuit ruled on arbitrability of labor union grievances under the CBA. In Paper, Allied-Industrial Chem. & Energy Workers Int’l Union, Local 4-12 v. Exxon Mobil Corp., 657 F.3d 272 (5th Cir. La. 2011), plaintiff (the “Union”) filed suit to compel defendant corporation (“Exxon”) to arbitrate two labor grievances, pursuant to a provision in the collective bargaining agreement (“CBA”). Read more here. On September 19, 2011 the Fifth Circuit held that class arbitration is not a class action under CAFA. In Williams v. Homeland Ins. Co., No. 11-30646 (5th Cir. Sept. 19, 2011), George Raymond Williams brought a class action suit in Louisiana state court on behalf of Louisiana medical providers against operator of preferred provider organization (“PPO”) network and other defendants, alleging violation of PPO notice provisions of Louisiana law. Read more here. On October 5, 2011, the Fifth Circuit finds information contained in arbitration award insufficient to determine insurance coverage. In American Home Assurance Company v. Cat Tech, L.L.C., No. 10-20499 (5th Cir. Oct. 5, 2011) Ergon Refining, Inc. (“Ergon”) hired Cat Tech, L.L.C. (“Cat Tech”) to service a hydrotreating reactor at its Mississippi refinery. In the course of servicing the reactor, Cat Tech damaged several of the reactor’s components. The matter was submitted to arbitration and the arbitrators awarded Ergon almost $2 million, including damages, prejudgment interest, attorney’s fees, and an offset for the unpaid contract price. Cat Tech sought indemnification under two insurance policies: (1) a commercial general liability policy issued by American Home Assurance Company (“AHA” ), and (2) a commercial umbrella policy issued by National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“NUFIC”). Read more here. On October 26, 2011, the Fifth Circuit compelled a non-signatory to arbitrate. In Blaustein v. Huete, No.11-30057 (5th Cir. La. Oct. 26, 2011) Burt David Huete along with Richard and Gail Blaustein, formed Special Projects Limited, L.L.C. (“SPL”) in connection with their application for a provisional patent for a wireless tracking device they had invented. SPL retained Timothy and Christopher Maier of Maier & Maier, P.L.L.C. (“the Maiers”) to prepare the patent application. Maier’s representation agreement included an arbitration clause and listed SPL as the client, with Huete and Richard Blaustein serving as signatories for SPL. When Huete’s relationship with Maier & Maier soured, he retained outside counsel. Read more here. On November 1, 2011, the Fifth Circuit held that a district court is not required to stay proceedings on merits pending appeal of denial of a motion to compel arbitration. In Weingarten Realty Investors v. Miller, No. 11-20676 (5th Cir. Nov. 1, 2011), Weingarten Realty Investors (“WRI”) and Miller Sheriden, LLC (“Miller”), created a joint venture. WRI loaned that joint venture $75,000,000 under the Loan Agreement between WRI and the joint venture. Miller did not sign the Loan Agreement individually but did sign a third-party guarantee (“Limited Guarantee”) for the loan, on the same day the Loan Agreement was executed, in which guarantee he and Miller guaranteed half of the loan. Read more here. Technorati Tags: law, ADR, arbitration

Welcome to Disputing‘s 2011 Year-End Highlights. During this year, the U.S. Supreme Court decided several cases related to arbitration: On April 27, 2011, in a 5-4 decision, the United States Supreme Court ruled that the the Federal Arbitration Act preempted California law with regard to class arbitration in AT&T Mobility, LLC v. Concepcion, 09-893, (April 27, 2011). Read James Gaitis guest-posts about the case here and here. On May 17, 2011, the U.S. Supreme Court denied certiorari (No. 10-1213) to Trustmark Ins. Co. v. John Hancock Life Ins. Co., 631 F.3d 869 ( 7th Cir. 2011). The Seventh Circuit had held that an arbitration panel has authority to determine what a confidentiality agreement requires, when the agreement was closely related to an insurance arbitration that was already underway. On June 14, 2011, the U.S. Supreme Court granted certiorari to Affiliated Computer Services, Inc. v. Fensterstock, No. 09-1562-cv. In Fensterstock v. Education Finance Partners, Inc., No. 08-CV-3622, 2009 U.S. Dist. LEXIS 30457 (S.D.N.Y. 2009) the U.S. District Court for the Southern District of New York had held that an arbitration agreement containing a class action waiver within a student loan promissory note is unconscionable and unenforceable as a matter of California law. Read more here. In October, 2011, the U.S. Supreme Court denied cert to Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84 (Tex. 2011). In Nafta Traders, the Texas Supreme Court had held that the Federal Arbitration Act (“FAA”) did not preempt enforcement of an agreement for expanded judicial review of an arbitration award enforceable under the Texas Arbitration Act (“TAA”). Such enforcement was consistent with the FAA’s purpose of ensuring that private arbitration agreements were enforced according to their terms. See Texas Supreme Court Declines to Follow Hall Street in Arbitration Case: Nafta Traders, Inc. v. Quinn, May 13, 2011. On November 7, 2011, the U.S. Supreme Court held that courts must enforce arbitration agreements even if the plaintiff’s Complaint contains nonarbitrable claims. In KPMG LLP v. Cocchi, 565 U.S. ___ ( 2011) the Fourth District Court of Appeal of the State of Florida upheld a trial court’s refusal to compel arbitration in a lawsuit involving claims brought against the auditing firm KPMG LLP (“KPMG”) by investors owners of a limited partnership (“Respondents”) who were defrauded by Bernie Madoff. Respondents alleged four causes of action: negligent misrepresentation; violation of the Florida Deceptive and Unfair Trade Practices Act; professional malpractice; and aiding and abetting a breach of fiduciary duty. Read more here. On November 14, 2011 the U.S. Supreme Court remanded Branch Banking and Trust v. Gordon for the Eleventh Circuit to reconsider its decision in light of AT&T Mobility LLC v. Concepcion, 563 U. S. ___ (2011). In Gordon v. Branch Banking & Trust, 419 Fed. Appx. 920 (11th Cir. Fla. 2011) the Eleventh Circuit had ruled that an arbitration provision in a consumer checking account agreement was unenforceable because the arbitration provision’s non-severable waiver of the right to a class action was substantively unconscionable under Georgia law. Technorati Tags: arbitration, ADR, law