In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration. The courts seem to be saying to defendants with arbitration agreements: don’t worry if you lose in the trial court, we will be your Tim Howard and save you from the gaping jaws of litigation. (I have watched *a lot* of World Cup soccer in recent weeks, folks. That is partly to blame for the huge stack of arbitration cases waiting for me to write about them. Well, that and the fact that judges all over the nation appear to be churning out opinions at record speed before their law clerks turn into pumpkins in August.)
These are not just run of the mill reversals, either. One dealt with an issue of first impression and another with a wholesale gutting of twenty years of case law.
In Al Rushaid v. Nat’l Oilwell Varco, Inc., __ F.3d__, 2014 WL 2971701 (5th Cir. July 2, 2014), the plaintiff filed suit against six defendants in August 2011, but could not serve one of them, NOV Norway, until August of 2012, after the other parties had engaged in significant discovery. NOV Norway moved to compel arbitration within three months of being served the complaint. The district court denied the motion because a) it found the price quote did not effectively incorporate the terms containing the arbitration agreement, and b) it found NOV Norway waived its right to arbitrate by invoking the judicial process. On appeal, the Fifth Circuit reversed on both those grounds. It found the plain language of the price quote did incorporate a general terms and conditions document with an arbitration agreement. And, as a matter of first impression, it found that even though all the defendants were jointly owned and controlled and represented by the same counsel, the litigation activity of its codefendants could not be imputed to NOV Norway for the purpose of determining waiver. (The court said the outcome would change if there were a basis to pierce the defendants’ corporate veil or an alter ego situation.)
Dean v. Heritage Healthcare of Ridgeway, LLC, __S.E.2d__, 2014 WL 2771300 (S.C. June 18, 2014), involved wrongful death claims against a nursing home, and the relevant arbitration agreement said that “any arbitration proceeding that takes place under this  Agreement shall follow the rules of the [AAA]“. However, the AAA stopped accepting personal injury disputes based on pre-injury arbitration agreements in 2003. The nursing home moved to compel arbitration and the trial court denied the motion. It found that the language about the AAA rules meant that the dispute should be heard by the AAA and since the AAA was not available, the arbitration agreement was invalid. The Supreme Court of South Carolina reversed. But before the supremes could get to the merits, they had to overrule their own 1993 decision, which held that nursing home contracts did not involve interstate commerce. After reviewing the intervening cases from SCOTUS, the court found the nursing home agreement does involve interstate commerce and is governed by the FAA. On the merits, the court found that the availability of the AAA to administer the arbitration was not a material term and instead the parties’ agreement simply calls for the arbitration to be governed by the AAA rules, regardless of what entity administers the proceeding.
In a Texas case, the defendant’s motion to compel arbitration was denied after the trial court found the arbitration agreement was unconscionable because it limited the plaintiffs’ statutory remedies and had a unilateral attorneys fees provision. While the court of appeals affirmed that result, the Supreme Court of Texas reversed. Venture Cotton Cooperative v. Freeman, __S.W.3d__, 2014 WL 2619535 (Tex. June 13, 2014). Importantly, the court held that the agreement’s waiver of aspects of state law was invalid, but that was insufficient to invalidate the entire arbitration agreement. Instead, it found the “objectionable limitation on the farmers’ statutory rights” should have been severed. (And the attorneys’ fees provision also was insufficient to invalidate the arbitration agreement.)
Finally, the Third Circuit also just vacated a district court’s decision to deny a motion to compel arbitration in Ross Dress for Less, Inc. v. VIWY, L.P., 2014 WL 2937031 (3d Cir. July 1, 2014). In that dispute over lease payments, the lease provided (confusingly) that disputes worth less than $50,000 should be arbitrated and those worth more than $50,000 can be litigated or arbitrated at the option of either party. However, if the tenant withheld rent and the landlord disagreed, the dispute must be determined by an arbitrator. In this case, their were claims relating to tenant withholding along with other claims worth more than $50,000 and the parties disagreed as to whether they had to arbitrate. The district court found that the claims were outside the scope of the arbitration clause. But the Third Circuit looked at the “conflicting lease provisions” and relied heavily on the federal presumption in favor of arbitrability to hold that all issues in the case must be arbitrated.
The primary lesson that can be drawn from these four cases is this: if you have a colorable argument for compelling arbitration, don’t give up if you lose at the trial court level.