The August 20th issue of Health Lawyers Weekly, a publication by the American Health Lawyers Association features the following interesting case: A federal court in Kentucky held recently that a physician and hospital must arbitrate their contract dispute and enjoined the physician from proceeding with his state court action against the hospital. Greenview Hospital, Inc. and Dr. Eric Wooten entered into a purported contract on October 8, 2010. Several months later, Wooten sued Greenview asking a state court to find the arbitration provision of the purported contract void, to enforce the contract, and to award damages for breach. Wooten also alleged the contract was void as against public policy and was unconscionable. Greenview subsequently filed the instant action in federal district court seeking to compel arbitration and enjoin Wooten from pursuing his state court action. Wooten moved to dismiss, or alternatively, to stay the proceedings because of the pending state court action. The U.S. District court for the Western District of Kentucky found the balance of factors “strongly counsels against staying the case,” citing in particular “the nature of the significant federal rights at issue”—i.e., the Federal Arbitration Act (FAA) and the Anti-Injunction Act. Greenview argued the court should grant its motion to compel arbitration and enjoin Wooten from proceeding with his state court action. According to Wooten, however, the contract’s choice-of-law provision required the application of Kentucky law. Because the arbitration agreement was unenforceable under Kentucky law, the court could not compel arbitration, Wooten contended. Rejecting Wooten’s argument, the court noted Supreme Court precedent finding a general choice-of-law provision does not override an arbitration clause. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995). Examining the instant contract, the court found as in Mastrobuono, “the choice of law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration, neither [clause] intrudes upon the other.” Thus, “[w]hile Kentucky law may otherwise govern the contract between the parties, it does not govern the arbitration clause or make it unenforceable,” the court held. The court went on to find arbitration should be compelled. Wooten did not dispute the existence of an agreement to arbitrate or that the claims raised by both parties were within the scope of that agreement. The court also enjoined Wooten from proceeding with his state court action, finding such action was not barred by the Anti-Injunction Act and “would serve to protect or effectuate this Court’s judgment.” Greenview Hosp., Inc. v. Wooten, No. 1:10-cv-00085-TBR (W.D. Ky. July 15, 2010). Read the full issue here. Find out more about the American Health Lawyers Association here.
Continue reading...We are happy to share with you that our blog Disputing turns five today! Disputing was originally conceived by Karl Bayer and Rob Hargrove as a forum for discussion of legal developments as they happen. We have come a long way since our very first blog post: Three Law Review Articles have cited Disputing (here, here and here). Disputing was mentioned by the Wall Street Journal for covering consumer arbitration clauses and the “Arbitration Fairness Day.” Disputing has also been cited by several CLE presentations in Texas. Disputing‘s blogmaster was invited to guest-blog at the Loree Reinsurance and Arbitration Law Forum and at Peter Vogel‘s Internet, Information Technology, & e-Discovery Blog (post available here). The Supreme Court of Texas Blog feeds Disputing‘s case summaries of decisions rendered by the Texas Supreme Court. Diane Levin, blogmaster of the award-winning Mediation Channel blog, has named Disputing as One of the Five ADR Blogs to Add to your Reading List. Disputing is listed on the French Arbitration Database-La Base de Données sur le Droit de l’Arbitrage Interne et International. Disputing has teamed up with Don Philbin’s ADR Highlight Reel and the Loree Reinsurance and Arbitration Law Forum to create the Commercial and Industry Arbitration and Mediation Group on LinkedIn. Disputing is also featured at Michael VanDervort’s ADR, Conflict Resolution and Exchange LinkedIn Group. Disputing is a mediate.com Featured Blog (read our posts here and here). Disputing is listed as a resource at the University of Oregon’s Master’s Degree Program In Conflict and Dispute Resolution program. We also have been honored to host commentaries and guest-posts by the following friends of this blog: Audrey L. Maness Don Philbin F. Peter Phillips Glen M. Wilkerson Honorable W. Royal Furgeson, Jr. James M. Gaitis Jane Reister Conard John C. Fleming John DeGroote Kent B. Scott Peter S. Vogel Philip J. Loree, Jr. Professor Alan Scott Rau Professor Peter Friedman Professor S.I. Strong Professor Thomas J. Stipanowich Richard Webb Rick Freeman We would like you to celebrate with us by leaving a reply on this post! The Disputing team, Karl Bayer, Alyson Chaky, Holly Hayes & Victoria VanBuren Technorati Tags: ADR, law, arbitration
Continue reading...The College of Commercial Arbitrators (CCA) has issued its Protocols for Expeditious, Cost-Effective Commercial Arbitration: Key Action Steps for Business Users, Counsel, Arbitrators & Arbitration Provider Institutions. Professor Thomas J. Stipanowich, contributor of this blog, is the Editor-in-Chief of this excellent resource and Curtis E. von Kann and Deborah Rothman participated as Associate Editors. You may download the protocols here. Technorati Tags: ADR, law, arbitration
Continue reading...Allan Dinkoff from Weil Gotshal & Manges LLP wrote an interesting piece discussing arbitration clauses after the U.S. Supreme Court ruling on Rent-A-Center, West. Dinkoff suggests writing two arbitration clauses in employment agreements: The lessons to employers and others is clear. The agreement to arbitrate should contain two separate clauses, which should be made clearly independent. The first clause should contain the agreement to arbitrate the underlying disputes, such as all claims arising out of or related to the employment, including but not limited to claims arising in tort or contract, claims for discrimination under federal, state or local law, claims for defamation, claims for or related to wages, including claims for unpaid wages, overtime and unlawful deductions from wages. (We leave to one side for now the issue of class action waivers or class arbitrations more generally.) The second clause should contain the agreement to arbitrate all disputes relating to the interpretation, applicability, enforceability or formation of the agreement generally or the agreement to arbitrate, including, but not limited to any claim that all or part of the agreement generally or the agreement to arbitrate is void or voidable for any reason, including but limited to that it is a contract of adhesion, fails for lack of consideration, is procedurally or substantively unconscionable or is void as against public policy. Read the full article here. Technorati Tags: ADR, law, 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.