Arbitration Organizations Largely Immune From Suit

The Eighth Circuit Court of Appeals held that arbitrator immunity extends to arbitration organizations, here the American Arbitration Association, in Owens v. American Arbitration Association, Inc., 2016 WL 6818858 (8th Cir. Nov. 18, 2016).

Commentary from Liz Kramer, Seth Leventhal, and the American Bar Association Section on Litigation.

Nursing Home Arbitration

A federal court prevented a proposed regulation basically prohibiting nursing home arbitration agreements.

Pro-plaintiff commentary on the rule from noted Alabama plaintiffs' lawyers Beasley Allen.

Arbitration of Disputes Related to Wills and Trusts

Arbitration of Trust Disputes is the title of a recent book edited by Missouri law professor SI Strong.

Relatedly, The Will As An Implied Unilateral Arbitration Contract by Santa Clara law professor Gary Spitko,

Supreme Court to Decide Nursing Home Arbitration Power-of-Attorney Case

The US Supreme Court agreed to hear Kindred Nursing Centers LP v. Clark, to review a Kentucky Supreme Court decision declining to give effect to an arbitration agreement signed by family members on behalf of a nursing home resident who had executed powers of attorney in favor of those family members.

Cellphone Arbitration Clauses Under Attack

Time Magazine published on Sunday a joint op-ed in which Federal Communications Commissioner Mignon Clyburn (D) and U.S. Senator Al Franken (D-Minn.) argue that cellphone carriers and other communications businesses have used class action waivers in arbitration agreements to “evade accountability by effectively locking the courtroom doors on their customers.”  

The FCC contemplates a rulemaking in February 2017 with respect to arbitration clauses in consumer communications services contracts.  

Hat tip to Mark Kantor

Suit Challenging Rule Prohibiting Nursing Home Arbitration

The American Health Care Association (AHCA) sued the Department of Health and Human Services whose Centers for Medicare and Medicaid Services (CMS) issued a rule barring nursing homes from entering into pre-dispute arbitration agreements with residents.

The suit, citing the Federal Arbitration Act, asks that the court find the arbitration rule unlawful and stop enforcement of the rule after its effective date of November 28, 2016.  

Coverage of this suit by National Public Radio, and the National Law Review.

Nursing Home Arbitration Soon to End?

A new federal rule bars any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of court. Many nursing homes receive Medicare and Medicaid funding so the rule will affect nursing homes with 1.5 million residents, according to the NY Times.

The rule is by the Department of Health & Human Services Centers for Medicare & Medicaid Services.

While nursing home arbitration agreements tend to raise all the issues raised by other adhesive agreements--plus more due to the importance of the contract compared to, say, a cellphone's--they are nevertheless agreements.

The Times unfortunately perpetuates its distorted coverage of arbitration by implying that arbitration necessarily "stymie[s] the families of nursing home residents from getting justice." One would need to know arbitrators' rulings in particular cases, and know the facts and law of the cases, to develop an informed view of the extent to which justice was done in those cases. Same with cases ruled on by judges and juries in court.  

International Arbitration and Mediation at Fordham University

Fordham University is hosting a conference on International Arbitration and Mediation Friday, 14 October 2016

Trump's Adhesive Arbitration Agreement

Trump campaign's contract with its volunteers includes an arbitration clause. Nicely summarized by former Temple University Law Professor, David Post.

Arbitration of Fox News' Anchor's Sex Harassment Claim?

"Lawyers for the Fox News chairman Roger Ailes filed a motion on Friday arguing that the sexual harassment lawsuit filed against him by a former anchor, Gretchen Carlson, should be moved from" court to arbitration, the New York Times reports.  “Gretchen Carlson had an arbitration clause in her contract, stating that any employment dispute regarding her employment at Fox News must be done via confidential arbitration,” Barry Asen, Mr. Ailes’s lawyer, said in a statement.

NYTimes discusses relationship between confidentiality and employment arbitration.

The Politics of Arbitration Law and Centrist Proposals for Reform

My latest article, The Politics of Arbitration Law and Centrist Proposals for Reform, is in the Harvard Journal on Legislation. Stephen J. Ware, The Politics of Arbitration Law and Centrist Proposals for Reform, 53 Harvard J. on Legislation 711 (2016).

The abstract:

Arbitration law in the United States is far more controversial when applied
to individuals than to businesses. While enforcement of arbitration agreements
between businesses sometimes raises legal issues that divide courts, those issues
tend to interest only scholars, lawyers, and other specialists in the field of arbitration.
In contrast, enforcement of arbitration agreements between a business
and an individual (such as a consumer or employee) raises legal issues that
interest many members of Congress and various interest groups, all of whom
have taken positions on significant proposals for law reform. The Consumer
Financial Protection Bureau has extensively researched and reported on consumer
arbitration agreements and is expected to issue a rule regulating, or even
prohibiting, such agreements.

This Article both explains how issues surrounding consumer and other adhesive
arbitration agreements became divisive along predictable political lines
and introduces a framework to understand and compare various positions on
them. This new framework arrays on a continuum five positions on the level of
consent the law should require before enforcing an arbitration agreement
against an individual. Progressives generally would require higher levels of
consent than arbitration law currently requires, while conservatives generally
defend current arbitration law’s low standards of consent.

This Article proposes a centrist position. It joins progressives in rejecting
overbroad enforcement of adhesive arbitration agreements due to conservative supported
anomalies in arbitration law’s treatment of contract-law defenses, legally-
erroneous decisions, and class actions. Once these anomalies are fixed,
though, this Article joins conservatives in defending general enforcement of adhesive
arbitration agreements under contract law’s standards of consent because
adhesive arbitration agreements should—contrary to progressive opinions—be
as generally enforceable as other adhesion contracts. This Article briefly concludes
by proposing language for a rule the Consumer Financial Protection Bureau
could adopt to enact the reforms advocated in this Article.

Circuit Split on Employment Class Waivers

The Seventh Circuit refused to enforce an arbitration agreement’s prohibition on class actions, which would have required the employee to individually arbitrate his wage and hour claim. The Seventh Circuit said the agreement’s prohibition on class actions violated the employee’s right to engage in concerted activity under the National Labor Relations Act.

In so ruling the Seventh Circuit joined the National Labor Relations Board but split from the Fifth Circuit.

Law Professors' Support of CFPB Proposal

The Consumer Financial Protection Bureau has proposed a rule to ban class-action waivers in arbitration agreements.

As the CFPB summarizes:

First, the proposed rule would prohibit covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action with respect to the covered consumer financial product or service. Second, the proposal would require a covered provider that is involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau.

Many law professors signed a letter supporting this rule.
Further support from Brooklyn Law Professor David Reiss

Ban on Class Waivers in Consumer Finance Arbitration Coming Soon?

The Consumer Financial Protection Bureau has proposed a rule to ban class waivers in arbitration agreements.

As the CFPB summarizes:

First, the proposed rule would prohibit covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action with respect to the covered consumer financial product or service. Second, the proposal would require a covered provider that is involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau.

Hat tip to Opal Nicole Smith

Employment Arbitration Agreements Eliminating Class Actions

A view from Jackson Lewis on whether employers should use arbitration agreements that eliminate class actions.

International Arbitration Essay Contest with Cash Prizes

McGill University in Montreal,Canada, will award the Nappert Prize in International Arbitration and $4000 Can. for a paper on commercial or investment arbitration.

Nursing Home Arbitration

Will courts enforce arbitration agreements covering wrongful death claims? Generally, yes, if the patient signed the agreement. But what if a family member signed on the patient's behalf? The New York Times discusses: Plaintiffs' lawyers "argued that unless family members had power of attorney, they lacked the authority to agree to arbitration." This argument often works: "Appeals courts across the country have been throwing out arbitration agreements signed by family members of nursing home residents." Basically an agency law question, although with undertones of unconscionability.

Workplace Arbitration

Workplace arbitration is the subject of a new website ArbitrationInfo.com by the Center for the Study of Dispute Resolution at the University of Missouri School of Law and the National Academy of Arbitrators