Will Pryor has once again written an annual survey of alternative dispute resolution (ADR) law in Texas for the SMU Law Review. This is the third year ADR was included in Law Review’s Annual Survey of Texas Law issue and also the third time Pryor has provided his expertise and insight. In “Alternative Dispute Resolution,” 63 SMU Law Review 275 (2010), Pryors’s article largely concerns developments in Texas arbitration law. He notes the shake-up caused by the U.S. Supreme Court’s 2008 decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008), led “appellate courts everywhere. . . to reevaluate and reverse decades of appellate law. . . ” After touching upon Moore v. Altra Energy Technologies, Inc., 295 S.W.3d 404 (2009), and its contribution to Texas mediation law, the remainder of the article is focused on arbitration. The bulk of arbitration cases discussed in the article were sub-divided into one of four sets: cases where an arbitration agreement was enforced; cases where an arbitration agreement was not enforced; cases where an arbitration award was confirmed; and cases where arbitration award was set aside. As in his previous surveys, Pryor’s summaries provide a convenient overview of the past year’s developments in alternative dispute resolution law. Disputing has blogged on several of the cases discussed in Pryor’s article: Hall Street Associates, L.L.C. v. Mattel, Inc. was blogged about many times including here, here and here. In re Labatt Food Service, L.P. was discussed here, here and here. Graves v. B.P. America, Inc. here, here and here. Perry Homes v. Cull here. In re Poly-America, L.P. was described here and here. Technorati Tags: arbitration, ADR, law
Continue reading...The Fort Worth Appeals Court has held in a memorandum opinion that an arbitration clause does not constitute a jury waiver. In In re Professional Pharmacy II, No. 2-10-163-CV, (Tex. App. – Fort Worth, September 23, 2010) the relator (Professional Pharmacy) sought a writ of mandamus from a district court’s March 8, 2010 order granting JP Morgan Chase Bank, NA’s (JP Morgan’s) motion to strike Professional Pharmacy’s jury demand and enforce a contractual waiver of jury trial. In 2008, Professional Pharmacy filed a suit against JP Morgan which alleged breach of a depository contract, sought declaratory relief and requested a jury trial. For more than eighteen months, the parties conducted discovery, filed motions and filed a joint motion for continuance. In February 2010, JP Morgan filed a motion to strike Professional Pharmacy’s jury demand and enforce a contractual waiver of jury trial allegedly contained within a “master account agreement.” The complete provision stated: Most disputes arising under this Agreement related to accounts or services hereunder are subject to mandatory binding arbitration. Rights to trial by judge or jury are waived hereby. Bank must be notified by depositor of claims and proceedings to enforce any such claims must be brought, within the time requirements established in the Account Disclosures and Regulations. Professional Pharmacy responded: “JP Morgan had failed to meet its burden to prove the existence of a valid and enforceable jury waiver and that the provision relied upon by JP Morgan was not a jury waiver but rather an unenforceable arbitration provision that had been waived by JP Morgan’s actions.” According to Professional Pharmacy, the arbitration clause was unenforceable because JP Morgan filed the motion eighteen months after Professional Pharmacy filed its jury demand and a mere forty-six days before trial. A trial court granted JP Morgan’s motion on March 8, 2010. The next day, Professional Pharmacy paid a jury fee. Professional Pharmacy then filed a petition for a writ of mandamus. According to the Appeals Court, “’[A] difference exists between a jury trial waiver and an agreement to arbitrate disputes.’ See Chambers v. O’Quinn, 305 S.W.3d 141, 149 (Tex. App.—Houston [1st Dist.] 2009, no pet.).” The court applied basic rules of contract construction in an effort to ascertain the intent of the parties and stated: The first sentence in the provision at issue clearly relates to arbitration as the method that has been selected for resolving disputes. The sentence waiving trial by judge or jury also clearly contemplates arbitration as it attempts to take the dispute resolution out of the court system altogether. “Judge” and “jury” are mentioned in the same sentence, and there is nothing to indicate the waiver of jury standing alone. Accordingly, JP Morgan’s contention that the provision is a valid jury waiver fails. See Chambers, 305 S.W.3d at 149. Moreover, even if this provision was meant to serve as a jury waiver, it would fail because it is not conspicuous. See In re Bank of America, 278 S.W.3d 342, 344–45 (Tex. 2009) (per curiam); Prudential, 148 S.W.3d at 134. The Court of Appeals conditionally granted Professional Pharmacy’s writ of mandamus and instructed the lower court to vacate its earlier order granting JP Morgan’s motion to strike. Disputing discussed jury waivers in the context of In re Bank of America last year here and here. Technorati Tags: ADR, law, arbitration
Continue reading...by Holly Hayes U.S. Politics Today reported that in Connecticut, “as of July 1, the presiding judge over a medical malpractice case must refer the case to a 120-day mediation period or other alternative dispute resolution (ADR) process ‘before the close of proceedings.’” The stated purpose of the new statute which mandates mediation in medical malpractice cases is to achieve a “prompt settlement or resolution of the civil action.” The hope is that cases with very clear liability issues or those that are not meritorious to begin with can be settled before incurring the expenses of a trial. While there are some critics of the new law, it appears there is consensus that it will not resolve “big-ticket” malpractice cases. The new law may help avoid protracted litigation during the resolution of smaller cases, however. In August, we reported on an American Medical Association (AMA) survey of 5,825 physicians about medical liability lawsuits that said: The majority of lawsuits never made it to the courtroom, according to 2008 data from the Physician Insurers Assn. of America (PIAA), a trade group representing liability insurance companies owned or operated by physicians, hospitals and other health care professionals. Sixty-five percent were dropped, dismissed or withdrawn. About one in four claims was settled, and 4.5% were decided by alternative dispute mechanism. Of the 5% that went to trial, defendants won in 90% of cases, the PIAA said. But fighting a claim is costly. Defense against a claim averaged $22,163 for suits dropped, dismissed or withdrawn, and more than $100,000 for cases that went to trial, according to PIAA data. Let us hear from you about mandating mediation in medical liability cases. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com. Technorati Tags: Mediation
Continue reading...Next month, the Financial Industry Regulatory Authority (FINRA) will file a rule proposal to expand a two-year-old Public Arbitrator Pilot Program (pilot program) which would allow all investors filing arbitration claims the option of having an all-public arbitration panel. FINRA’s rule proposal will be filed for approval with the Securities and Exchange Commission. If approved, the rule would allow investors to choose an arbitration panel with two public arbitrators and one non-public arbitrator or an all-public panel. Currently, the pilot program allows investors filing an arbitration claim against 14 firms that volunteered for the program the option of choosing an all-public panel. The current pilot program is also limited to cases that do not involve individual brokers. The proposed rule would expand the pilot program to include all investor disputes against any firm and any individual broker, although the proposed rule would not apply to disputes involving only industry parties. More than 60 percent (approximately 560 cases) of eligible investors chose to opt in since the pilot program began in October 2008. Of those investors, approximately 50 percent chose to include one non-public arbitrator on their panel. The pilot program was originally slated to conclude in October 2010, however, participating firms recently agreed to extend the pilot program for one-year in order to allow time for the rule making process to be completed. You can read an interesting article about the rule proposal here. The FINRA news release may be read here.? Disputing blogged on FINRA’s Public Arbitrator Pilot Program previously here. Technorati Tags: law, ADR, arbitration, FINRA, securities arbitration,
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.