In In re Checking Account Overdraft Litigation, No. 11-14282 (11th Cir. March 21, 2012). Maxine Given filed a class action against Manufacturers and Traders Trust Company (M&T Bank), alleging that M&T Bank improperly charged its checking account customers overdraft fees. The customer agreement included an arbitration clause obligating customers to arbitrate disputes arising out of the checking account; it also stated that whether a dispute was subject to arbitration was to be decided by an arbitrator. The district court denied M&T Bank’s motion to compel arbitration, finding that Given’s claims were not within the scope of the parties’ arbitration agreement. M&T Bank appealed. The Eleventh Circuit held that a clause delegating to an arbitrator the decision of whether the arbitration agreement covered a particular controversy was valid under the Federal Arbitration Act. The court stated that “[c]ourts should enforce valid delegation provisions as long as there is ‘clear and unmistakable’ evidence that the parties manifested their intent to arbitrate a gateway question.”

We stumbled upon the article “Arbitration of Environmental Disputes” by David McCutcheon from Fraser Milner Casgrain LLP. Here is an excerpt: For commercial dispute resolution arbitration has become the preferred solution that provides a fast, efficient and commercially appropriate approach to resolving complicated disputes in a reasonable timeframe. Although there is some use of arbitration for environmental disputes, court actions have predominated. The advantages of arbitration weigh heavily in favour of an expanded use in resolving environmental disputes. Arbitration clauses could easily be incorporated into remediation and indemnity agreements, agreements of purchase and sale, warranties and consulting agreements. Continue reading here (free registration may be required).

On May 29, 2012, the Second Circuit denied rehearing to Nat’l Supermarkets Ass’n v. Am. Express Travel Servs. Co. (In re Am. Express Merchants’ Litig.), No. 06-1871 cv (2d Cir. May 29, 2012). The underlying case (“Amex III“) had concluded that AT&T Mobility LLC v. Concepcion , 131 S.Ct. 1740 (2011) addresses state contract rights and does not apply to Amex III since Amex III deals with federal statutory rights. (read more about the case here and here) Judge Pooler, concurring in the denial of rehearing en banc stated, The limited holding in this case is not governed by the Supreme Court’s reasoning in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 179 L. Ed. 2d 742 (2011). Concepcion holds that the Federal Arbitration Act (“FAA”) preempts state laws hostile to arbitration, and focuses its analysis on preemption issues. In contrast, analysis in Amex III rests squarely on a vindication of statutory rights analysis — an issue untouched in Concepcion.” Find the order here.

ABA Dispute Resolution Section will host the teleconference “The Past Year in Arbitration” on June 12 at 12:00-1:30 pm ET. Here are the details: This program will focus on the most important arbitration issues of the last year. Panelists will discuss the United States Supreme Court rulings on arbitration issues, as well as notable federal and state court decisions. Join us for an in depth conversation on the hottest issues in the field of arbitration, including class action and arbitrability issues. The panel will also discuss pending legislation and administrative actions that would have an effect on arbitration law and practice. Attend this program and get up to speed on current events affecting the field of arbitration. Moderator: Kristen Blankley, University of Nebraska Law College, Lincoln, NE Speakers: Thomas Burch, University of Georgia School of Law, Athens, GA James Madison, Madison Mediation, Menlo Park, CA Maureen Weston, Pepperdine University, School of Law, Malibu, CA Teleconference Registration Deadline: Monday, June 11, 2012. Register online here. The registration form is here.