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Second Circuit Rejects Enforcement of Class Waiver and Arbitration Agreement Under FAA, Finds That Provisions Impermissibly...

The plaintiff sued the trustee of his retirement plan, his former employer, and others for breach of fiduciary duties in connection with the plan’s purchase of shares of the employer’s parent company for more than fair market...more

Expect Focus - Volume I, January 2024

Funds Not Caged by SEC Names Rule Amendments: Roaming Room Remains - The SEC recently adopted amendments to its investment company “names” rule that apply to most SEC-registered funds, including underlying funds in which...more

New California Lapse Statute Decision Highlights the Importance of Where Insurance Policies are “Issued or Delivered”

This past May, the Ninth Circuit Court of Appeals affirmed a district court’s order granting summary judgment in favor of a life insurance company, finding that California’s lapse statute applies only to life insurance...more

Texas Supreme Court Remands Case in Light of Recent Ruling That Arbitrator Must Determine Arbitrability for AAA Arbitration...

In a lawsuit brought by a car dealership (Lone Star) against a car auction company (Alliance), the latter moved to compel arbitration as a third-party beneficiary of an agreement between Lone Star and a separate company that...more

Court Confirms Arbitration Award Against Non-Signatory Intervening Party in Arbitration

Paychex Inc. had entered into an agreement to provide a company, Dan-Gulf Shipping Inc., with payroll-related services. The agreement contained an arbitration clause governed by the rules of the American Arbitration...more

Fifth Circuit Affirms Denial of Arbitration, Rejects Arbitration Provisions in “Battle of the Forms” Between Buyer and Seller in...

The case involved the sale of mist eliminators (demisters) from MECS Inc. to Axiall Canada Inc., an owner of a Canadian manufacturing facility. A key issue involved the terms of the parties’ contractual relationship as formed...more

Expect Focus - Volume II, May 2023

For broker-dealers distributing and selling variable annuities, examinations will test for compliance with Reg BI and FINRA Rule 2330 because both standards apply to variable annuity sales. Firms distributing and selling...more

Expect Focus - Volume I, January 2023

More than 25 years have elapsed since the SEC adopted Exchange Act Rule 17a-4(f) governing electronic recordkeeping by broker-dealers. In an effort to update the rule to reflect “technology neutral” concepts, the SEC adopted...more

Court Grants Nigeria’s Second § 1782 Application for Discovery in Foreign Proceeding in Dispute Over $10B Arbitration Award...

The U.S. District Court for the Southern District of New York granted the 28 U.S.C. § 1782 application of the Federal Republic of Nigeria to issue subpoenas on four U.S. entities and two individuals, the respondents, in aid...more

Court Confirms Foreign Arbitration Award, Notwithstanding Pending Action in Foreign Court Seeking Award’s Annulment

Applying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, a U.S. federal district court confirmed a Lebanese arbitration award in favor of Iraq Telecom Ltd. for $3 million against Intercontinental...more

Life Insurance Lapse Notice Class Actions Fail to Take Root: California Court Denies Certification

California lapse notice litigation has garnered publicity ever since the California Supreme Court in McHugh v. Protective Life Insurance Co. held that the new insurance statutes requiring a 60-day grace period and 30-day...more

Second Circuit Affirms Order Confirming Arbitration Award Finding No Partiality Related to Arbitrator’s (Attenuated) Personal and...

An individual appealed from an order confirming an arbitration award. The appellant argued that the district court erred in refusing to vacate the arbitration award on grounds of “evident partiality.” The appellant contended...more

Fifth Circuit Dismisses Appeal of Order Denying Motion to Reopen Case, Sever Cost-Splitting Provision, and Impose Costs of...

The underlying dispute related to a property manager’s limitation of the appellant, Jane Doe, to one pet in her apartment. Doe sued the manager for declaratory relief, injunctive relief, monetary damages, and punitive damages...more

California Decisions Kick Off Parade of Life Insurance Lapse Notice Cases

In our May 2021 issue, we discussed the rise in life insurance policy lapse notice cases in California following the state’s 2013 enactment of California Insurance Code sections 10113.71 and 10113.72. These statutes establish...more

Ninth Circuit Affirms Denial of Motion to Compel Arbitration Against Non-Signatory Spouse of Contracting Party

In a case brought under the Telephone Consumer Protection Act (TCPA), the Ninth Circuit Court of Appeals affirmed an order denying the defendant corporation’s motion to compel arbitration, which the company filed pursuant to...more

Court Permits Munich Re to Expand Its Counterclaims Against Cedent AMIC, Following Dismissal of AMIC’s Bad Faith Claims

On April 13, 2021, we reported on a decision by the U.S. District Court for the Middle District of Alabama that dismissed a portion of a complaint brought by cedent Alabama Municipal Insurance Corp. (AMIC) for bad faith...more

Third Circuit Affirms Dismissal of Petition to Confirm “Sham” Arbitration Award

A pro se plaintiff had sought to confirm a $116,313 award by “Sitcomm Arbitration Association,” which had allegedly ruled that TD Auto Finance LLC was liable for breach of contract. TD Auto Finance contested the petition by...more

Second Circuit Affirms Denial of Vacatur of Employment Arbitration Award Due to Failure to Provide Evidence of Alleged Perjury in...

The district court had denied a motion filed by a former employee of a department store for vacatur of an arbitration award that rejected a grievance filed by the employee’s union against the store. On appeal, the employee...more

Eleventh Circuit Holds That “Notice of a Motion to Vacate” Under FAA Cannot Be Accomplished by Email Absent Express Written...

After an arbitration resulted in an award that included more than $650,000 in attorneys’ fees, the liable party filed a motion to vacate that portion of the award in a federal district court. The attorney for that party,...more

Fourth Circuit Enforces Arbitration Agreement’s Waiver of Appellate Review

The Fourth Circuit Court of Appeals upheld the enforceability of an employment agreement’s waiver of appellate review of an arbitration award. The waiver purported to waive both judicial and appellate review of the...more

Sixth Circuit Reverses District Court for Exceeding Its Authority by Ruling on Arbitrability in the Presence of an Unchallenged...

The plaintiff alleged that she was a victim of an illegal predatory loan orchestrated by the defendant’s company. The loan allegedly charged excessive interest but was shielded from U.S. law by tribal sovereign immunity....more

Fourth Circuit Affirms Denial of Vacatur of Arbitration Award, Finding No Deprivation of a Fair Hearing or Manifest Disregard of...

A former vice president of a division within Oracle Corp. filed a demand for arbitration against Oracle, claiming that he was owed additional bonus compensation under the terms of his employment contract and the Maryland Wage...more

Ninth Circuit: Website Visit Four Years After Assent To a Contract Containing a Change-of-Terms Provision Does Not Bind Parties To...

The Ninth Circuit affirmed the district court’s order compelling arbitration in a case brought under the Fair Credit Reporting Act (FCRA) and state law, based on the plaintiff’s purchase of Experian’s Credit Score...more

Ninth Circuit Affirms Denial of DIRECTV’s Motion To Compel Arbitration, Creating Circuit Split on Procedure for Determining Scope...

The plaintiff had filed a class action alleging that DIRECTV made calls to his cell phone in violation of the Telephone Consumer Protection Act. DIRECTV attempted to compel arbitration by relying on an agreement that the...more

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