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

Mark your calendars! Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog will host “Legal Issues in the Development of the Internet: The Five Big Bang Theory,” a State Bar of Texas Webcast on Wednesday, August 25, 2010 from 12:30-1:30pm CST. TOPICS: Statutes and judicial rulings have impacted the development of the Internet, and this program will include a description of how laws including antitrust and intellectual property helped shape the Internet including Social Media. The Five Big Bang Theory describes technological developments since the invention of the punch card for the 1890 US Census, computers during World War II, proliferation of the browsers, and advent of Social Media. However each phase of the Five Big Bang Theory has been impacted by the law. So it also likely that the 6th Big Bang will also be impacted by the law whenever it occurs. For more information click here. To register click here. Technorati Tags: ADR, law, arbitration

The United States Court of Appeals for the Fifth Circuit held that a defendant had waived its right to compel arbitration because its substantial invocation of the judicial process had prejudiced the plaintiff. In MC Asset Recovery, LLC v. Castex Energy, Inc., No. 09-10451 (5th Cir. Aug. 2, 2010) MC Asset Recovery, LLC (MCAR) sued Castex Energy, Inc. (Castex) alleging breach of a purchase and sale agreement. The district court denied Castex’s motion to compel arbitration on the ground that Castex had waived arbitration through its substantial invocation of the judicial process. Castex now appeals. The Fifth Circuit noted that “[t]here is a strong presumption against finding a waiver of arbitration, and the party claiming that the right to arbitrate has been waived bears a heavy burden.” The court agreed with MCAR’s claims that Castex had waived that its right to compel arbitration through its substantial invocation of the judicial process. Castex answered MCAR’s suit asserting several affirmative defenses, including the right to compel arbitration. Castex requested a trial by jury and filed motions to dismiss after the filling of each of MCAR’s three amended complaints. Castex also sought a protective order seeking to stay discovery pending resolution of one of its motions. Ultimately, Castex proceeded to file a motion to compel arbitration when the district court had partially denied its third motion to dismiss. The court also found that MCAR had been prejudiced by Castex’s actions. MCAR had spent over $265,000 in attorney’s fees and costs in defending against Castex’s motions to dismiss. The court stated that “Castex’s delay in seeking to compel arbitration forced MCAR to incur significant legal expenses, placed it in a weaker legal position, and delayed the resolution of this case for over eighteen months.” Accordingly, the court affirmed the district court’s judgment denying the motion to compel arbitration. Technorati Tags: ADR, law, arbitration

We came across the article Unresolved Questions in the Wake of the U.S. Supreme Court’s Class Arbitration Ruling in Stolt-Nielsen v. AnimalFeeds International, by Robert E. Crotty from Kelley Drye & Warren LLP. Here is an excerpt: The U.S. Supreme Court’s April 27 ruling in Stolt-Nielsen v. AnimalFeeds Int’l. (No. 08-1198), leaves numerous questions unanswered, says attorney Robert E. Crotty in this BNA Insight. The five-justice majority ruled on when class action procedures can be used in arbitration, but the author says Justice Ruth Bader Ginsburg’s dissenting opinion could ‘‘eviscerate’’ the majority opinion because class action arbitration arises most often in consumer transactions and employment contexts, areas Ginsburg presumably referred to as ‘‘contracts of adhesion.’’ Crotty says that as long as Ginsburg’s ‘‘carve out’’ remains viable, attorneys should continue to include clauses in arbitration agreements that preclude class arbitration, and to include fee-splitting provisions, so that arbitration is not economically or procedurally onerous for consumers or employers. You may download the full article here. Any thoughts? Related posts: GUEST-POST | Rent-a-Center, West, Inc. v. Jackson and the Ongoing Assault on Party Autonomy, James M. Gaitis (June 23, 2010) GUEST-POST | Professor Alan Scott Rau Comments on Rent-A-Center, West, Inc. v. Jackson, Alan Scott Rau (June 22, 2010) Stolt-Nielsen v. AnimalFeeds | Blawgosphere Roundup on Class Action Arbitration Case (May 13, 2010) GUEST-POST | Stolt-Nielsen Opens More Doors Than It Closes, S.I. Strong (May 6, 2010) GUEST-POST | Professor Stipanowich Comments on Stolt-Nielsen v. AnimalFeeds, Thomas J. Stipanowich (April 28, 2010) Technorati Tags: arbitration, ADR, law