Karl Bayer's Disputing Blog

You Can’t Have It Both Ways: Fifth Circuit Finds Arbitration Waiver

By Victoria VanBuren - April 20, 2009

Last week, the Fifth Circuit decided Geraldine Nicholas v. KBR, Inc., No. 08-20140, (5th Cir. Mar. 15, 2009). The court affirmed the district court’s ruling denying Nicholas’ motion to compel arbitration of her contract dispute with KBR. Nicholas waived her right to arbitrate (pursuant to an arbitration clause) because she substantially invoked the judicial process to the prejudice of KBR. The court applied a two-prong test: Did Nicho

Fifth Circuit Denies Motion to Vacate Arbitration Award

By Victoria VanBuren - April 7, 2009

In Nat’l Resort Mgmt v. Cortez, No. 08-10805 (5th Cir. Mar. 31, 2009), the Fifth Circuit cited Hall Street v. Mattel and Citigroup v. Bacon, stating that “the number of grounds for challenging an arbitration award has been substantially reduced.” The two-paragraph unpublished opinion affirmed the lower court’s ruling. The court added that “given the deference accorded to arbitration awards, there is no flaw in this p

Fifth Circuit Compels Arbitration of Tort Claims

By Victoria VanBuren - March 25, 2009

This week, the Fifth Circuit decided Woodmen of the World Life Insurance Society/ Omaha Woodmen Life Insurance Society v. JRY, No. 08-30405 (5th Cir. Mar. 23, 2009). The defendant-appellees (“JRY” and “TSY”) are parents suing on behalf of the Estate of their minor son (“BMY”) and the plaintiff-appellant Woodmen of the World (the “Society”) is a non-profit fraternal society that provides life insuran

Fifth Circuit: Life After Hall Street

By Victoria VanBuren - March 17, 2009

Last week, the Fifth Circuit decided whether manifest disregard of the law remains a valid ground for vacating an arbitration award in light of last year’s U.S. Supreme Court case Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S.Ct. 1396 (2008). For background and commentary on that case, visit our previous posts: Dead? Alive? Matter of Opinion? Dec. 4, 2008 Rau Responds Jun. 9, 2008 Rau Gives Souter a C-minus Jun. 5, 2008 Glen Wilkers

Fifth Circuit: Arbitrator Should Determine Arbitrability

By Victoria VanBuren - March 5, 2009

In Agere Systems Inc. v. Samsung Electronics Co., Ltd., (No. 07-40984), the Fifth Circuit held that the question of arbitrability should be decided by an arbitrator. The dispute between Agere Systems and Samsung Electronics arouse out of five patent cross-licensing agreements (dated 1990, 1995, 1999, 2000, and 2006). In 2006, Agere sued Samsung for breach of the licensing agreement and Samsung responded by invoking a mediation clause contained in

Fifth Circuit: the Public Policy Exception

By Victoria VanBuren - February 17, 2009

The latest Fifth Circuit‘s decision related to arbitration is Cont’l Airlines, Inc. v. Air Line Pilots Ass’n, _F.3d_ (5th Cir. 2009) (Cause No. 07-20835). This case falls within the Railway Labor Act (RLA), which provides that minor disputes must be resolved through compulsory and binding arbitration before the System Board of Adjustment (SBA). Here, a pilot is appealing an order of the U.S. District Court for the Southern Distr

Fifth Circuit Rejects Amway’s Arbitration Policy

By Rob Hargrove - February 13, 2008

About a week ago, the Fifth Circuit handed down an opinion in an Amway distributorship dispute (link is to .pdf file) which rejects, after a decade of arbitration and arbitrability litigation, a claim by Amway that certain disputes had to be arbitrated. As followers of this area are aware, a Fifth Circuit opinion rejecting arbitrability is noteworthy in and of itself. Amway, of course, is a company that sells products through distributors who in