Internet Research

www.ArbitrationAdr.com (Case Names & Citations are in the Text): Subjects addressed below are highlights of 2008. See Summaries below; or click on the ChangeLog in the Text

On April 15, 2008, all 2007 cases were included in the text and transferred to Archives (above). All 2008 cases below have been incorporated into the text.

Arbitration Alert: The Supreme Court has granted cert. in Discover Bank v. Vaden, 489 F.3d 594 (4th Cir. 2007). This case has significant jurisdictional issues for arbitration and arbitrators.  Discover Bank is discussed in the Text.

See, Ch. II-Jurisdiction

Arbitration Alert: Hall Street Assocs. v. Mattel, Inc., 128 S. Ct. 1396 (2008) on remand to the Ninth Circuit after the Supreme Court reversed their decision wrote this: "This court, having concluded that Hall Street Assocs. has preserved the issue of sources of authority, other than the FAA, through which a court may enforce an arbitration award, the cause is remanded to the district court to make such determinations and conduct such hearings as may be consistent with the Supreme Court's decision.

Arbitration Alert: The Supreme Court has also vacated the Ninth Circuit opinion in Comedy Club, Inc. v. Improv West Assocs., 514 F.3d 833 (9th Cir. 2007) in light of Hall Street Assocs. v. Mattel, Inc. The Ninth Circuit had held the arbitrator applied the wrong California law.

Case Summaries for 2008 (below)

Classwide Arbitration & Choice of Law Clauses

Confidentiality of Arbitration

Awards & Legal Error

Initiating Arbitration

Confidentiality of Mediation
Discovery in Arbitration

Arbitration Clauses

Confidentiality in Arbitration Agreements

Employment Arbitration

Non Arbitrable Parties & Incorporation

Summary Judgments

Illegal Contracts

Incorporation of Documents

Arbitrator Disclosure

Expired Contracts & Arbitration Agreements

Motions to Vacate, Modify of Confirm Award

Pleading & Proving the Arbitration Clause

"Existence" of the Contract

Arbitrability

Waiver

Arbitrator Exceeds Powers

Unilateral Terms in Arbitration Clauses

Arbitration Awards (2008)

Collateral Estoppel & Res Judicata (2008)

Multiple Issues Between Same Parties (2008)

Attorney Fees: Prevailing on Petition to Compel (2008)

Summary Judgment (2008)

Classwide Arbitration & Choice of Law Clauses (10/19/2008)

An arbitration clause contains a choice of law clause forbidding classwide arbitration and identifying South Dakota as the applicable state law for resolution of disputes between a consumer and a bank. South Dakota enforces classwide waivers. California prohibits waiver of classwide arbitration and the plaintiff files in a California court.  The defendant removes to federal court.  Which state law applies?  The Ninth Circuit remands to the district court to determine applicable law.

See, Ch. IV-F-8: Classwide Arbitration

Confidentiality of Arbitration (9/25/2008)

Critics of arbitration dislike the confidentiality of arbitration but the Fifth Circuit has upheld the right of the parties to contract for, or stipulate to, confidentiality.

See, Ch. IV-G-2-a-2): Confidentiality Agreements

Awards & Legal Error (9/25/2008)
The California Supreme Court has ruled that parties to a contract can agree to judicial review of arbitration awards for legal error on appeal.  This case overrules several Court of Appeals cases and is inconsistent with Ninth Circuit and Supreme Court law on this subject.

The same case also discusses arbitrator authority in class actions when the contract is silent on this subject.

See, Ch. XXI-F-8-c: Arbitrator Exceeds Powers

Initiating Arbitration (8/15/2008)

Despite efforts by the Supreme Court to analytically separate the arbitration clause from the terms of the contract, determining who resolves what issue remains.  The Ninth Circuit decided waiver of the right to arbitrate, and the right to determine whether a party initiated arbitration, remain a judicial function.

See, Text, Ch. IV-F-1-b: Objections to Arbitrability

Confidentiality of Mediation (7/24/2008)  
The California Supreme Court has enforced the confidentiality provisions of mediation statutes and disapproved of implied waiver or estoppel to carve out exceptions despite quesionable conduct by one of the parties.

See, Text, Ch. XI-B-2-a: Confidentialitiy

Discovery in Arbitration (7/24/2008)
The California Supreme Court has held that non parties must first object to discovery requests in the arbitration forum.  If the ruling is unfavorable, the moving non party may appeal to the Superior Court.

See, Text, Ch. XX-H; Discovery

Arbitration Clauses (7/24/2008)

In another example of distinguishing broad form arbitration clauses to include torts, the 11th Circuit held a clause requiring arbitration of "claims arising out of the contract" included those caused by a breach (of the contract) as distinct from claims arising out of the existence of the arbitration clause itself.

See, Text, Ch. IV-F-3-a; Broad Form Arbitration Clauses

Confidentiality in Arbitration Agreements 7/10/2008

With the exception of the Ninth Circuit, Federal Circuit Courts of Appeal have enforced confidentiality clauses in arbitration agreements as not violative of public policy. The Fifth Circuit confirmed this rationale in a class action lawsuit in which the plaintiff wanted the results of a prior arbitration award available to other members of an educational facility who had sought to file suit (or arbitrate). The defendant filed declaratory relief and sought an injunction to prevent disclosure. The court agreed.

See, Text, IV-G-2-a-2.): Confidentiality Agreements

The court also noted that a discovery provision in the arbitration clause could be enforced under the FAA.