Amicus Brief Opportunity for ADR Scholars and Practitioners

Disputing would like to thank Professors Kristen M. Blankley, University of Nebraska College of Law, and Liz Tippett, University of Oregon School of Law, for the following guest post:

by Kristen M. Blankley and Liz Tippett

I would like to invite you to review and sign an amicus brief in the important arbitration case of Bakoss v. Lloyd’s of London, No. 12-1429.  This case is currently before the Supreme Court on a petition for certiorari.  The case deals with the definition of “arbitration” under the Federal Arbitration Act.  Specifically, the case involves whether certain third party valuations constitute “arbitration” under the FAA.

The facts of the case involve a claim for insurance benefits under a Lloyd’s of London policy.  The contract between the parties had a procedure under which an independent third party physician would make a “final and binding” determination as to whether Bakoss was “totally disabled.”  The case concerns whether this procedure constitutes “arbitration” under the FAA.

In Bakoss, the Second Circuit concluded that it was, using a settlement-based definition of arbitration focused on likelihood the process would resolve the dispute, rather than examining the salient features of the process, such as the availability of a hearing, the presentation of evidence, and an arbitration award. 707 F.3d 140, 143 (2d Cir. 2013).

A small group of scholars, led by Liz Tippett of Oregon, drafted an amicus brief arguing that the process-based definition (known as the “classic arbitration” standard) adopted by the First, Sixth and Eleventh Circuits, is more functional and closer to Congressional intent than the settlement-based definition adopted by the Second Circuit. The brief also argues that the broader settlement-based definition would have a devastating effect on dispute resolution as a whole, sweeping into the purview of the FAA other dispute resolution procedures aimed at “settlement.”

If you would like more information, please contact Liz Tippett (tippett@uoregon.edu), myself (kblankley2@unl.edu), or counsel of record Scott Seidman (scott.seidman@tonkon.com) to get a copy of the brief.

Yesterday, Disputing published a short blog post about this important case.  Please stay tuned for continued updates!