In a 5-4 decision, the United States Supreme Court ruled today that the the Federal Arbitration Act preempted California law with regard to class arbitration in AT&T Mobility, LLC v. Concepcion, 09-893, (April 27, 2011). Check back for more information on the case soon. Disputing‘s previous blog posted after the Court heard oral argument in the case is available here. Technorati Tags: law, ADR, arbitration

John Lande, Director of the LLM Program in Dispute Resolution and Isidor Loeb Professor at the University of Missouri School of Law, recently published An Empirical Analysis of Collaborative Practice, Family Court Review, Vol. 49, pp. 257-281, April 2011; University of Missouri School of Law Legal Studies Research Paper No. 2011-10. In his article, Professor Lande summarizes empirical studies conducted to date on collaborative practice. The publication discusses many topics including the “demographic characteristics of collaborative clients,” “clients’ reasons for choosing collaborative practice,” “collaborative lawyers’ backgrounds and practices,” and “additional professionals.” Here is the abstract: This article summarizes empirical research about Collaborative Practice, the Collaborative movement, its interaction with other parts of the dispute resolution field, and its impact on the field. It reviews studies of Collaborative Practice describing the individuals involved in Collaborative cases, how the process works, the operation of local practice groups, and the impact of Collaborative Practice on legal practice generally. Based on this analysis, it suggests an agenda for future research. Finally, it offers suggestions for constructive development of the Collaborative field. The article may be downloaded here (without charge) from Social Science Research Network. Other publications by Professor Lande are available here. We would love to hear your thoughts. Technorati Tags: ADR, law, arbitration

Earlier this month, an interesting arbitration case was decided in the Northern District of Mississippi. In Cook v. GGNSC Ripley, LLC, No. 3:10CV018 (N.D. Miss., Apr. 14, 2011), the court held a nursing home resident was bound to an arbitration agreement as a third-party beneficiary. The American Health Lawyers Association reported, A federal trial court in Mississippi ruled April 14 that a negligence action against a nursing home by a deceased resident’s estate was arbitrable pursuant to an agreement that her daughter signed as part of the admissions process. Although the daughter did not have a power of attorney and the arbitration agreement was not a healthcare decision under state law, the U.S. District Court for the Northern District of Mississippi found, the resident was a third-party beneficiary to the agreement under Mississippi contract law. According to the court, the arbitration agreement became part of the admissions agreement under its express terms. The resident did not sign the admissions agreement, but she was a third-party beneficiary of the agreement given that her care was its essential purpose. “As such, [the resident] is bound by the terms of the contract, including the arbitration agreement,” the court said. You may read the entire American Health Lawyers Association article here. What are your thoughts on the court’s ruling? Technorati Tags: arbitration, ADR, law

The Southern District of Texas has confirmed a foreign arbitration award despite that fraud was alleged because the public policy defense specified in the New York Convention does not preclude confirmation of a foreign arbitral award where the party arguing against confirmation also allegedly participated in the fraud. In Tamimi Global Co. v. Kellogg Brown & Root LLC, No. H-11-0585, (S.D. Tex., March 24, 2011), the United States of America awarded Kellogg Brown and Root (“KBR”) a contract to provide dining facility services during military operations in Iraq. In June 2003, KBR entered into a Master Agreement sub-contract with Tamimi to provide food services at Camp Anaconda. The Master Agreement contained an arbitration clause which stated the London Court of International Arbitration (“LCIA”) would resolve any disputes which arose out of the Master Agreement. After KBR entered into the Master Agreement with Tamimi, a disagreement arose between the US and KBR. The US began withholding monetary payments as a result of this dispute. KBR then withheld payment of approximately $35 million from Tamimi, arguing KBR was not required to pay Tamimi until it received payment from the US. In May 2010, KBR and Tamimi began an arbitration proceeding before the LCIA and a final award in favor of Tamimi was issued in December 2010. The award required that KBR pay Tamimi the $35 million Tamimi was owed under the Master Agreement plus 4% interest and well as legal fees plus 4% interest. Tamimi filed a Petition to Confirm Foreign Arbitration Award and KBR filed a response opposing the petition and a Motion to Stay Proceedings pending resolution of the underlying dispute between KBR and the US which was then being litigated in the United States Court of Claims. In support of its position, KBR alleged it was against public policy under the New York Convention to confirm an arbitration award when the underlying agreement which contained the arbitration agreement was obtained through fraud. KBR relied completely on a filing from the company’s ongoing dispute with the US which alleged KBR’s head of food services in Iraq and Kuwait, along with his deputy, received kickbacks from Tamimi in return for influencing KBR’s decision to award the sub-contract to Tamimi. The US further alleged that senior personnel at KBR, including the head of procurement and the head of dining services contracts, were made aware of irregularities related to the Master Agreement, but took no action. Because KBR’s argument that the Master Agreement was obtained through fraud rested entirely upon allegations made by the US in the Court of Claims proceeding, and KBR was an alleged participant in the fraud, the Southern District held, Enforcement of an arbitration award or other judgment in favor of one party alleged to have committed fraud against the other party allegedly engaged in the same fraudulent misconduct does not violate the most basic notions of morality and justice. Next, the Southern District of Texas addressed KBR’s allegations that the LCIA’s award of interest was against Texas public policy. According to the court, the agreement provided for interest and arbitration awards must normally be enforced as written. KBR’s reliance on a case which refused to impose interest in an arbitration award was misplaced because in that case the arbitral award did provide for interest. Instead, a party sought to have the court add interest when it confirmed the arbitration award. According to the Southern District of Texas, In the case before this Court, the arbitration panel awarded interest, indeed, interest that was provided for by the governing arbitral rules, and it would be inappropriate to modify the Arbitration Award to eliminate the interest portion of the Award. The court stated, None of the seven grounds specified in the New York Convention, more particularly, the public policy defense, precludes confirmation of the Arbitration Award in this case. Public policy favors confirmation of foreign arbitration awards. The allegations of fraud by both KBR and Tamimi, even if proven by the United States in the Court of Claims proceeding, do not support denial of confirmation of the Arbitration Award on public policy grounds. Tamimi’s Petition to Confirm Foreign Arbitration Award was granted and KBR’s Motion to Stay was denied. Disputing would like to thank Charles Rumbaugh for alerting us to this case. Technorati Tags: arbitration, ADR, law