General Business Alternative Dispute Resolution (ADR) Conflict of Laws

Read need-to-know updates, commentary, and analysis on General Business issues written by leading professionals.
News & Analysis as of

It Is Now Easier To Draft Class Action Waivers and Arbitration Agreements

Last week, the California Supreme Court provided additional guidance as to how to draft an enforceable arbitration agreement and how Courts should analyze whether mandatory arbitration provisions can be held unconscionable...more

Recent Appellate Decisions Reshape the Landscape of Arbitration Law

For in-house counsel who draft and enforce arbitration agreements, trying to keep up with the fast-moving landscape of arbitration law is a significant challenge. Over the last several years, the United States Supreme Court...more

UPDATE: SCOTUS Denies Petition For Cert In Iskanian

On June 24, 2014, the California Supreme Court issued a controversial decision in Iskanian v. CLS Transportation Los Angeles, LLC. While the Court in Iskanian confirmed that an express class action waiver in an employment...more

California’s “Third Party Litigation Exception” Not Preempted By The FAA

A California appellate court recently examined that state’s legislative response to the situation where a party moves to compel arbitration and some of the parties to the dispute are not parties to the arbitration agreement....more

Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair

The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL...more

Second Circuit Affirms Orders Enjoining Arbitration, Holding Broad Forum Selection Clause Supersedes FINRA Arbitration Rule

The Second Circuit affirmed two cases in which financial services firms had succeeded in enjoining FINRA arbitrations that were initiated against them by public financing entities. The court held that in each case, the FINRA...more

Arbitration Agreements in Nursing Home Admission Agreements

In response to increasing runaway verdicts with large awards for punitive damages, many nursing homes are including arbitration clauses in their admission agreements. The U.S. Supreme Court’s decision in Marmet Health Care...more

The California Divide: Federal Courts Refuse to Follow State Supreme Court’s Iskanian Decision

One of the last barriers to full enforcement of arbitration agreements with class action waivers sustained another blow last week. A California federal district court disagreed with the California Supreme Court in holding...more

PAGA Claims and Arbitration – A Federal Court Parts Ways With Iskanian

The California Supreme Court’s decision in Iskanian v. CLS Transp. Los Angeles, LLC, held that class action waivers in arbitration agreements are enforceable under the Federal Arbitration Act (FAA) except as to claims that...more

Eleventh Circuit Refuses To Compel Arbitration In Dispute Between Loan Servicer and Borrower

On October 2, the Eleventh Circuit affirmed a district court’s decision refusing to compel arbitration sought by a servicer in a dispute with a borrower over the terms of a loan agreement. Inetianbor v. Cashcall, Inc. No....more

BVI court issues pivotal guidance on exclusive jurisdiction clause

In what is likely to be considered a landmark decision, the BVI Commercial Court has held that winding up proceedings brought on just and equitable grounds relating to BVI companies will not be caught by an exclusive...more

Be Careful What You Ask for: Selecting Forums for Arbitration

On October 2, 2014, the United States Court of Appeals for the Eleventh Circuit rendered its decision in Inetianbor v. CashCall, Inc. Although this case did not involve a non-compete agreement, the Eleventh Circuit’s guidance...more

Second Circuit Holds Forum Selection Clause Supersedes FINRA’s Mandatory Arbitration Rule

In Goldman, Sachs & Co. v. Golden Empire Schools Financing Authority, No. 13-797-cv, 2014 WL 4099289 (2d Cir. Aug. 21, 2014), the United States Court of Appeals for the Second Circuit held that a forum selection clause in a...more

Forum-Selection vs. Arbitration Issue Teeing Up for Supremes

The Second Circuit stayed its mandate last week to allow public-pension litigants to file cert petitions seeking review of its August holding that a subsequent account-agreement forum-selection clause requiring federal-court...more

A Check in the “Win” Column for Broker-Dealers!

The Second Circuit recently issued a single opinion for two cases [Goldman Sachs & Co. v. Golden Empire Sch. Fin. Auth., No. 13-797-cv (2d Cir. Aug. 21, 2014) and Citigroup Global Mkts. Inc. v. N.C.E. Mun. Power Agency, No....more

Second Circuit Decision Provides Guidance for Drafting Enforceable Broker-Dealer Agreement Forum Selection Clause

On August 21, the US Court of Appeals for the Second Circuit decided two closely watched appeals regarding the intersection of Financial Industry Regulatory Authority, Inc. (FINRA) rules mandating arbitration of...more

Second Circuit Holds Contractual Forum Selection Clause Supersedes FINRA Mandatory Arbitration Rule

On August 21, the US Court of Appeals for the Second Circuit decided two closely watched appeals regarding the intersection of Financial Industry Regulatory Authority, Inc. rules regarding mandatory arbitration of disputes...more

Second Circuit Finds That Forum Selection Clauses Supersede FINRA Arbitration Rule

On August 21, the U.S. Court of Appeals for the Second Circuit held that forum selection clauses, requiring “all actions and proceedings” related to the transactions between the parties to be brought in court, supplant...more

Seventh Circuit Finds Tribal Arbitration Is Unreasonable and Unconscionable

In a victory for advocates who worry that the odds are impossibly stacked against consumers in some arbitral fora, the Seventh Circuit found that a class of borrowers did not have to proceed with arbitration conducted by the...more

Uncertainty Remains Regarding the NLRB's Position on Class and Collective Action Waivers

The law concerning class action waivers continues to develop at a rapid pace. While most courts are now enforcing class action waivers in arbitration agreements, there remains at least one prominent area of uncertainty for...more

California Employees Can Waive Class Claims In An Arbitration Agreement, But Not PAGA Claims

Resolving an issue that has created uncertainty for California employers, the California Supreme Court recently held in Iskanian v. CLS Transportation Los Angeles, LLC that class action waivers in employment arbitration...more

Arbitration Awards—No Longer The Final Word?

Courts currently have very narrow grounds on which they can overturn an arbitration award. The Federal Arbitration Act provides that a court cannot vacate an arbitration award except in cases where: the award was procured...more

California Supreme Court Upholds Class Action Waiver In Arbitration Agreement

Finally! The California Supreme Court recently fell in line with the United States Supreme Court on the enforceability of class action waivers in arbitration agreements by upholding their enforceability. Previously, the...more

California Supreme Court: Gentry is Gone. PAGA Lives On.

Compelled by U.S. Supreme Court precedent advancing arbitration as a method of dispute resolution, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (No. S20432, June 23, 2014) held that its...more

California Supreme Court Rules that Employers Are Entitled to Include Class Action Waivers in Arbitration Agreements

In a welcome development for California businesses, the California Supreme Court issued a favorable ruling on June 23, 2014, holding that California law permits employers to require employees to sign arbitration agreements...more

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