A public hearing was held yesterday on a collaborative healthcare bill currently before the 82nd Texas Legislature which would establish a Texas Institute of Health Care Quality and Efficiency. SB 8, which seeks “to improve health care quality, accountability, and cost containment in this state by encouraging health care provider collaboration, effective health care delivery models, and coordination of health care services,” was referred to the Health & Human Services Committee on February 17th. The bill’s author, Senator Jane Nelson, is also the Chair of the Senate Committee on Health and Human Services. The full text of the bill is available here. You may download audio and video of public hearings before the Committee on the Health and Human Services Committee’s website. You may also monitor this and other bills as they move through the Texas Legislature here. The last day of the regular Texas legislative session will be Monday, May 30, 2011. Disputing previously discussed SB 8 here and here. Technorati Tags: Healthcare, Texas Legislation ?
Continue reading...The Corpus Christi Court of Appeals has held it lacked jurisdiction to hear an interlocutory appeal from a trial court’s order which compelled arbitration and also refused to grant a writ of mandamus because a party failed to show an appellate remedy would be inadequate. In Circle Zebra Fabricators, Ltd. v. Americas Welding Corp., No. 13-10-00591-CV, (Tex. App. – Corpus Christi, March 17, 2011), Circle Zebra by and through Circle Zebra Management, L.L.C. (“Circle Zebra”) entered into a Master Service Agreement (MSA) to provide certified welders for work at Keppel Amfels, Inc.’s shipyard located in Brownsville, Texas. In order to meet its obligations under the contract, Circle Zebra purchased equipment, obtained necessary insurance and hired approximately 100 welders. Circle Zebra’s resulting investment totaled more than $1,000,000. After Circle Zebra’s welders began performing work at Keppel Amfels shipyard, Keppel Amfels requested that Circle Zebra meet with Jorge Manuel Garcia and representatives of Americas Welding Corporation (“Americas Welding”) for the stated purpose of expanding the available workforce by hiring Mexican Nationals. Circle Zebra refused to hire Americas Welding personnel and instead filed suit against Americas Welding, Keppel Amfels, Garcia, and Circle Zebra’s “chief foreman manager” Raul Castillo, Sr. alleging tortious interference, breach of contract and breach of fiduciary duty. Circle Zebra alleged that Castillo, Americas Welding, Garcia, and Keppel Amfels conspired “to convert Circle Zebra’s equipment and personnel to their use.” Keppel Amfels filed a motion to compel arbitration based on an arbitration clause contained in the parties’ MSA. Non-signatories Americas Welding, Garcia and Castillo also filed a joint motion to compel arbitration. The trial court granted both Keppel Amfels’ and the non-signatories’ motions and stayed the trial court proceedings pending the results of arbitration. Circle Zebra appealed the order compelling arbitration and sought a writ of mandamus from the Corpus Christi Court of Appeals. In the Court of Appeals, Keppel Amfels filed a motion to dismiss for lack of jurisdiction because the orders compelling arbitration were interlocutory and not subject to appeal. The court agreed and granted Keppel Amfels’ motion. According to the court, an order which compels arbitration and stays court proceedings is not subject to interlocutory appeal under either Texas or federal arbitration laws. In support of Circle Zebra’s writ of mandamus, the company argued that an appeal following arbitration would be inadequate because the alleged conspiracy had put it “out of business” and its cause of action did not arise from the MSA. Additionally, Circle Zebra argued the parties’ agreement explicitly stated it did not confer benefits on third parties or provide rights to third parties to enforce its provisions. Because Circle Zebra only addressed the issue of the adequacy of remedy by appeal in a motion to amend its petition after oral argument occurred, the Corpus Christi Court held, we deny Circle Zebra’s motion to supplement or amend its petition for writ of mandamus to discourage the practice of waiting until after oral argument to raise and address an issue which must be established as a necessary part of the petition for writ of mandamus. According to the court, Circle Zebra also failed to meet its burden to prove the inadequacy of its appellate remedy as a matter of law. The Court of Appeals stated, Delay and expense, standing alone, generally do not render appeal after a final judgment to be an inadequate remedy, and this is particularly true in the instant case because it is, at least in part, based on a contractual dispute, and a “party that prevails on a contractual claim can recover its fees and expenses, even if they were incurred in collateral proceedings like arbitration.” Despite that the court dismissed Circle Zebra’s appeal for lack of jurisdiction and denied its petition for a writ of mandamus, it noted that Circle Zebra’s right to appeal the trial court’s order after arbitration was held was preserved. Additionally, the court’s ability to vacate or modify any arbitration award under the Texas or Federal Arbitration Act was also preserved. Technorati Tags: arbitration, ADR, law
Continue reading...On February 18, 2011, The Northern District of Texas issued a Temporary Restraining Order (TRO) enjoining multiple arbitration proceedings before the Financial Industry Regulatory Authority (FINRA) in Billitteri v. Securities America Inc., et al., No. 3:09-CV-01568-F and related cases, (N.D. Tex., February 18, 2011). In the case, a group of representative plaintiffs in a class action lawsuit jointly filed a Motion for Preliminary Approval of a partial class action settlement with settling defendants from the financial services industry. The representative plaintiffs also filed a Motion for a Temporary Restraining Order to enjoin three scheduled FINRA arbitration proceedings because the plaintiffs in the arbitration proceedings were also members of the proposed class. The representative plaintiffs cited the All Writs Act, 28 U.S.C. § 1651(a), and claimed that allowing the scheduled FINRA arbitrations to proceed would require the settling defendants to expend monies needed for the proposed settlement on defending the arbitrations. The case made the news because the Northern District of Texas issued a TRO to preserve the status quo while the court considered whether to approve the proposed settlement. The court also noted that it would consider the appropriateness of using the All Writs Act to enjoin arbitration proceedings when it decided the parties’ Motion for Preliminary Approval. (Read more here.) Last week, Judge Royal Furgeson denied the parties’ proposed settlement and lifted the TRO: Because the terms of the proposed settlement would involve the enjoining of a number of FINRA arbitrations brought by individual investors against Securities America, the Court set a hearing and briefing schedule for March 18, 2011, the earliest possible date for such a hearing to occur. The Court considered the oral arguments and briefs of all of the parties. In accordance with the Court’s Order from the bench at the conclusion of the hearing, it is the opinion of the Court that the Representative Plaintiff’s Motion should be DENIED. As part of this decision, it is ORDERED the Temporary Restraining Order issued on February 18, 2011 (Billitteri Docket No. 210, Toomey Docket No. 75, McCoy Docket No. 132) and extended on March 7, 2011 (Billitteri Docket No. 290, Toomey Docket No. 89, McCoy Docket No. 179), which temporarily stayed several FINRA arbitrations against Defendant Securities America while the instant Motion was pending, is hereby LIFTED. (N.D. Tex., March 21, 2011, 2011 WL 1033647) The short order and opinion did not go into further detail. Judge Furgeson stated, however, the “Court shall issue a further order in the near future further explaining the Court’s reasoning in making its decision.” Disputing will definitely be keeping an eye out for the Northern District’s forthcoming opinion. You may also read more about the case here. Technorati Tags: arbitration, FINRA, News, securities arbitration
Continue reading...The Dallas Court of Appeals has held that certain language contained in an employee handbook rendered the contained and referenced arbitration and mediation agreements illusory and unenforceable. In Weekley Homes, L.P. v. Rao, No. 05-10-00570 (Tex. App. – Dallas, March 22, 2011), Len Rao, former Division President of David Weekley Homes, filed a lawsuit against the company which alleged breach of contract, conversion, breach of fiduciary duty, libel, slander and defamation. Weekley Homes responded by filing a plea in abatement and motion to compel arbitration, arguing that Rao agreed to arbitrate any and all claims against the company when he acknowledged and accepted a dispute resolution policy contained and incorporated by reference in the company’s employment handbook. According to Rao, the arbitration agreement contained in the handbook was not binding because language in the handbook rendered any promise to arbitrate made by Weekley Homes illusory. After the trial court denied Weekley Homes’ plea in abatement, Weekley Homes appealed. The Dallas Court of Appeals granted an emergency stay pending the appeal. The court also granted Rao’s motion to stay the arbitration proceeding filed by Weekley Homes during the pendency of the appeal. According to the Dallas Court, three pertinent documents were entered into the court record: (1) a printed copy of Weekley Homes’ online employment handbook; (2) a four-page document titled “Dispute Resolution Policy;” and (3) an email dated March 1, 2007 sent from Weekley Homes personnel to Rao which confirmed Rao received a copy of the online handbook. In a section titled “The Purpose of this Handbook,” the employment handbook contained the following language: Polices are not to be interpreted as a promise by the Company that any particular situation will be handled in the express manner set forth in the text. In a later section, under the larger heading “DWH Policies Section” was a section titled “Dispute Resolution.” Language in this section indicated “any claim, controversy or other dispute” related to employment at Weekley Homes “shall be resolved by arbitration, in lieu of jury trial or any other legal proceeding” under the Federal Arbitration Act. This section also contained a link to the four-page “Dispute Resolution Policy,” which likewise contained language which stated any claim or dispute arising from employment or termination of employment must be resolved by arbitration. Weekley Homes argued the Dispute Resolution Policy was enforceable against Rao because he agreed to its terms and acknowledged receipt of the handbook. Although Rao admitted to receiving the handbook, he argued the promise to arbitrate was made illusory by the terms of the handbook. Weekley Homes maintained the language in the handbook did not apply to the Dispute Resolution Policy because it was a “separate, fully valid and enforceable” document that contained no modification language. The Dallas Court of Appeals held the modification language contained in Weekley Homes’ employment handbook applied to the separate arbitration policy because the, very structure and language of the Handbook connects the modification language directly with the Dispute Resolution Policy. First, we note the modification language is set out in a section of the Handbook entitled “PURPOSE OF THIS HANDBOOK.” That section makes broad reference to “policies.” Second, we note the Handbook’s table of contents includes a category of provisions titled “DWH POLICIES SECTION.” The listed provisions under that title include “DISPUTE RESOLUTION.” In the body of the Handbook, the section titled “DISPUTE RESOLUTION” describes “The David Weekley Homes Dispute Resolution Policy [as being] designed to maintain a healthy work environment, encourage communication between Team Members, and resolve problems in an efficient manner.” Then, below the title “DISPUTE RESOLUTION” is another section titled “MEDIATION AND ARBITRATION.” Following that titled paragraph, are three paragraphs of text. . . . Following that statement is a link to the four-page Dispute Resolution Policy. One is invited to “Click HERE ” to review the “complete,” four-page Dispute Resolution Policy. Contrary to the Weekley Parties’ position, the Dispute Resolution Policy is incorporated by reference into the Handbook and an integral part of it. The court also disagreed with Weekley Homes’ contention that the modification language did not make the promise illusory because it stated employees would receive notification of any changes. According to the court, the modification language failed to state any changes to the agreement would be made prospectively and the, plain language of the modification provision gives Weekley Homes the unilateral power, at any time, to elect not to enforce any policy or provision in the Handbook. By virtue of the modification language, Weekley Homes has “expressly denied that [it] was bound by the policies set out in that document.” (citation omitted). After holding the arbitration obligation was illusory, the Dallas Court of Appeals affirmed the trial court’s order denying Weekley Homes’ plea in abatement and motion to compel arbitration and lifted its stay on the trial court proceedings. Technorati Tags: arbitration, ADR, law, Mediation
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.