Continuing our 2010 Year-End Highlights series, we present today a summary of noteworthy arbitration opinions handed down last year by the Texas Supreme Court. In East Texas Salt Water Disposal Co. v. Richard Leon Werline, No. 07-0135, (Tex. Mar. 12, 2010), the Texas Supreme Court held that the Texas General Arbitration Act allowed an appeal from a trial court’s order which denied confirmation of an arbitration award, vacated the award and directed that the dispute be arbitrated anew. You may read more here. In In Re Odyssey Healthcare, No. 09-0786, (Tex. May 7, 2010), the Court compelled arbitration between an employee and her employer where the plaintiff was employed in El Paso, the parties entered into an employment agreement which contained an arbitration provision, the employer was a non-subscriber to worker’s compensation and the arbitration provision required any arbitral panel be selected from Dallas. You may read more about this case here. In In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Inc., No. 09-0161, (Tex. June 25, 2010), the Texas Supreme Court held that a trial court abused its discretion when it refused to stay litigation that could moot arbitration of related claims in the same lawsuit. Read more here. In In re 24R, Inc., D/B/A The Boot Jack, No. 09-1025, (Tex. Oct. 22, 2010), the Court held that an arbitration agreement signed as a condition of continued employment was not illusory and did not require a savings clause. You may find more information about this case here. In In re Olshan Foundation Repair Company, LLC, Nos. 09-0432, 09-0433, 09-0474, 09-0703, (Tex. December 3, 2010), the Supreme Court of Texas held that the Federal Arbitration Act preempted the Texas General Arbitration Act in three related general arbitration clauses, but that a similar, more specific arbitration clause was unenforceable under the TAA. Read more about this ruling here. In MCI Sales & Serv. v. Hinton, No. 09-0048, (Tex. December 17, 2010), the Court held that participation in a non-binding mediation rendered a debtor a “settling person” under Chapter 33 of the Texas Civil Practice and Remedies Code for purposes of determining proportionate liability. Find more about this case here. Technorati Tags: arbitration, ADR, law, Texas Supreme Court

In 2010, the United States Court of Appeals for the Fifth Circuit decided the following arbitration-related cases: In Hall-Williams v. Law Office of Paul C. Miniclier, PLC, No. 09-30113, (5th Cir., Jan. 13, 2010), the Fifth Circuit compelled arbitration of a fees dispute between a law firm and a former client. The court held the parties’ arbitration clause was enforceable notwithstanding termination of their services contract. (read more here) In Institutional Capital Management, Inc. v. Claus, No. 08-20710, (5th Cir., Feb. 11, 2010), the court held that a National Association of Securities Dealers arbitration panel did not exceed its authority when it awarded attorney’s fees directly to counsel. (read more here) In Todd v. Steamship Mutual Underwriting Association (Bermuda) Limited, No. 09-30177, (5th Cir., March 18, 2010), the Fifth Circuit held that nonsignatories to arbitration agreements may be compelled to arbitrate under the New York Convention. (read more here) In Blaustein v. Huete, No. 09-31078, (5th Cir., June 18, 2010), the court refused to compel a nonsignatory to arbitrate his individual claims where he signed a legal representation fee agreement acting as a signatory for a limited liability company. The Fifth Circuit did not foreclose the possibility that he could be “held to the arbitration agreement as a non-party beneficiary,” however. (read more here) In CareFlite v. AFL-CIO, No. 08-10807, (5th Cir., Jul. 13, 2010), the Fifth Circuit held that a grievance concerning a pilot’s discharge was not subject to the Railroad Labor Act’s mandatory arbitration mechanism where a collective bargaining agreement between the airline and its pilots’ union explicitly excluded the claim. (read more here) In MC Asset Recovery, LLC v. Castex Energy, Inc., No. 09-10451, (5th Cir., Aug. 2, 2010), the court held that a defendant waived its right to compel arbitration because its substantial invocation of the judicial process had prejudiced the plaintiff. (read more here) In Allen v. Regions Bank, No. 09-60705, (5th Cir., August 11, 2010), the Fifth Circuit held that the question of arbitrability is for an arbitrator to decide where an arbitration agreement existed between the parties and they clearly intended for the issue to be arbitrated based on the wording of the arbitration provision. (read more here) In Positive Software Solutions, Inc. v. New Century Mortgage Corp., No. 09-10355, (5th Cir., September 13, 2010), the court held that it lacked inherent authority to impose sanctions for conduct which occurred during arbitration. (read more here) In Noble Drilling Services, Inc. v. Certex USA, Inc., No. 10-20083 (5th Cir., September 15, 2010), the Fifth Circuit held a court may not compel arbitration under a theory of direct benefits estoppel where there was no evidence a party had actual knowledge that a contract containing an arbitration clause existed and the party made no attempt to enforce the specific provision which contained the arbitration clause. (read more here) In Juan Torres v. S.G.E. Management, L.L.C., No. 09-20778, (5th Cir., October 5, 2010), the court held in an unpublished opinion that an arbitration provision in a multilevel marketing program contract which could be amended at the sole discretion of one party and bound the other party “upon notice” was illusory and unenforceable. (read more here) In Janvey v. Alguire, et al., No. 10-10617, (5th Cir., December 15, 2010), the court held that a motion to compel arbitration was not enough to defeat a federal district court’s preliminary injunction. (read more here.) Disputing will continue its 2010 Year-End Highlights next week. Technorati Tags: arbitration, ADR, law

Today, Disputing continues its 2010 Year-End Highlights. The U.S. Supreme Court decided several cases related to arbitration this year: On April 27, the U.S. Supreme Court handed down its decision in Stolt-Nielsen v. AnimalFeeds, 08-1198. The Court held that “Imposing class arbitration on parties who have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq.” On June 1, the Supreme Court denied certiorari in R.J. Reynolds Tobacco Company v. Montana, 09-911. The question presented was whether the Montana Supreme Court violated the Federal Arbitration Act by refusing to compel arbitration of a dispute between tobacco companies and settling states that courts of other states and territories held arbitrable under the plain terms of the nationwide Master Settlement Agreement. On June 21, the Court decided Rent-A-Center, West v. Jackson, 09-497. The question presented was whether a district court is required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (”FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision? On June 24, the U.S. Supreme Court decided Granite Rock v. Teamsters, 08-1214. In their decision, the Court held that a district court, not an arbitrator, should decide a Collective Bargaining Agreement (CBA) ratification date. The court noted that although “[t]he CBA requires arbitration of disputes that ‘arise under’ the agreement. The parties’ ratification-date dispute does not clearly fit that description.” On October 4, the Court denied certiorari in two unpublished cases from the 5th Circuit. In Louisiana Safety Association of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London, et. al, 09-945, (No. 06-30262, 5th Circuit, November 9, 2009, unpublished), the Court was asked to consider whether Chapter 2 of the FAA is an “Act of Congress” subject to the anti-preemption provision of the McCarran-Ferguson Act. Zurich American Insurance Company et. al v. Pioneer Natural Resources USA, Inc., 09-1305, (No. 09-31031, 5th Circuit, December 17, 2009, unpublished) asked whether, in a case removed under the Convention on the Recognition and Enforcement of Arbitral Awards, 9 U.S.C. § 205, an order denying a motion to compel arbitration and remanding to state court is appealable under the FAA’s express right of interlocutory appeal from such denials, 9 U.S.C. § 16(a)(1)(C), notwithstanding 28 U.S.C. § 1447(d). On November 9, the U.S. Supreme Court heard oral arguments in AT&T Mobility LLC v. Concepcion, 09-893, a class-wide arbitration case from the 9th Circuit. AT&T concerns the applicability of state law unconscionability defenses to class arbitration exclusion clauses in consumer arbitration agreements. Disputing will be keeping an eye out in 2011 for the Court’s opinion. Finally, on December 13, the Court denied certiorari in Certain Underwriters at Lloyd’s, London v. Lagstein, 10-534. The case sought to address whether a “manifest disregard of the law” standard of review for arbitration awards remains after the Court’s decision in Hall Street Associates, L.L.C v. Mattell, Inc., 552 U.S. 576 (2008). Technorati Tags: arbitration, ADR, law, U.S. Supreme Court

During 2010, Disputing was honored to post contributions from several law professors and practitioners. Some wrote guest-posts, others submitted comments via e-mail, and yet others alerted us of important developments in the ADR area. We would like to thank our blog contributors for improving Disputing‘s legal scholarship! If you are interested in submitting materials for Disputing, please e-mail us at: beth@karlbayer.com. Check out our 2010 blog contributors! (You may read their commentary by following the link after each bio.) The Honorable W. Royal Furgeson, Jr. received a B.A. from Texas Tech University in 1964 and a J.D. from the University of Texas School of Law in 1967. He was a United States Army Captain from 1967 to 1969 and an assistant county attorney in Lubbock, Texas in 1969. From 1969 to 1970 he was a law clerk for the Honorable Halbert O. Woodward at the U.S. District Court for the Northern District of Texas. Furgeson was in private practice in El Paso, Texas from 1970 to 1993. Furgeson currently serves as a federal judge on the U.S. District Court for the Northern District of Texas. He was nominated by President Bill Clinton on November 19, 1993 and confirmed by the United States Senate on March 10, 1994. He may be contacted at: Royal_Furgeson@txnd.uscourts.gov. His posts may be read here. (Photo source: Federal Bar Association) Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer and arbitrator. He has resolved disputes and crafted deals for more than 20 years as a commercial litigator, general counsel and president of communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels, including CPR’s Panels of Distinguished Neutrals. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee and a member of the ADR Section Council of the State Bar of Texas. Don is a Fellow of the American Academy of Civil Trial Mediators and is listed in The Best Lawyers in America (Dispute Resolution), Texas Super Lawyers (2010), The Best Lawyers in San Antonio and the Bar Register of Preeminent Lawyers. He may be contacted at: don.philbin@ADRtoolbox.com. His posts may be read here. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com. His posts are available here. Alan Scott Rau is the Mark G. and Judy G. Yudof Chair in Law at The University of Texas at Austin School of Law. He received his BA and LLB from Harvard University. Professor Rau teaches and writes in the areas of Contracts and Alternative Dispute Resolution (particularly Arbitration). He is co-author of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002); ADR and Arbitration: Statutes and Commentary (West, 1998), and Cases and Materials on Contracts (West, 2nd ed. 1992), and the author of several articles, including “The Arbitrability Question Itself” (American Review of International Arbitration, 1999); “La Contractualisation de l’Arbitrage: Le Modele Americain” (Revue de l’Arbitrage, 2001), and “All You Need to Know About Separability in Seventeen Simple Propositions” (American Review of International Arbitration, 2003). He serves on the Commercial and International Panels of the American Arbitration Association, and has been a visiting faculty member at the University of Toronto, China University of Political Science and Law in Beijing, Willamette University College of Law, the University of Geneva; and the Universities of Paris-I and Paris-II. Some of Professor Rau’s scholarly papers may be downloaded at the Social Science Research Network. His posts are available here. S.I. Strong is currently Associate Professor of Law at the University of Missouri and Senior Fellow at the award-winning Center for the Study of Dispute Resolution, having previously taught law at the University of Cambridge and the University of Oxford in the United Kingdom. Prior to joining the faculty at Missouri, Dr Strong was Counsel specializing in international dispute resolution at Baker & McKenzie LLP and a dual-qualified practitioner (U.S.-England) in the New York and London offices of Weil, Gotshal & Manges LLP. Dr Strong has acted in arbitral proceedings under a wide range of institutional rules and is listed as a neutral on various national and international rosters. Dr Strong is the author of numerous works on international arbitration, including the award-winning article, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity? 30 Michigan Journal of International Law 1017 (2009), as well as the books Research and Practice in International Commercial Arbitration: Sources and Strategies (2009) and Class Arbitration and Collective Arbitration: Mass Claims in the National and International Sphere (forthcoming), both from Oxford University Press. Dr Strong, who is qualified as a lawyer at the New York and Illinois bars and as a solicitor of the Supreme Court of England and Wales, holds a Ph.D. in law from the University of Cambridge, a D.Phil. from the University of Oxford, a J.D. from Duke University, an M.P.W. from the University of Southern California and a B.A. from the University of California. Her posts may be read here. Thomas J. Stipanowich is the William H. Webster Chair in Dispute Resolution and Professor of Law at Pepperdine University, as well as Academic Director of the Straus Institute for Dispute Resolution. The Straus Institute was ranked number one among academic dispute […]