Late last week, the Fifth Circuit Court of Appeals handed down another opinion holding that a federal statutory cause of action was subject to binding arbitration (link is to .pdf file). This time, the Court ruled that in enacting the Uniform Services Employment and Reemployment Rights Act (“USERRA”), Congress did not intend to preclude employers from requiring military employees to arbitrate their statutory rights. The case itself is fairly straightforward, factually. A Marine reserve office was fired by Circuit City immediately before being called up to active duty. He sued, claiming that the firing was in violation of his rights pursuant to USERRA. Circuit City moved to compel arbitration, and the Marine objected, stating that arbitration would deprive him of his statutory rights under USERRA. The Fifth Circuit explained the analysis that litigants must undertake in these cases, holding that to avoid arbitration a would-be litigant must show a clear intention on Congress’ part to exempt a statutory cause of action from the potential of arbitration: Because the parties agreed to arbitrate the dispute at issue, the agreement is enforceable unless Garrett can demonstrate that Congress intended to preclude arbitration. Congressional intent “will be discoverable in the text of [USERRA], its legislative history, or an ‘inherent conflict’ between arbitration and [USERRA]’s underlying purposes.” Internal Citation Ommitted. The Court found that none of these factors was present, and it ordered the case to arbitration. While not everyone may have an active USERRA practice, the Court’s opinion will be important in any case in which a statutory cause of action runs across an arbitration clause. Garrett v. Circle C. Stores, Inc., ___F3d ___ (5th Cir. 2006) (Cause No. 04-11360). UPDATE: Michael Fox, one of the other Austin lawyers who blogs, offered his own commentary on the case over on Jottings by an Employer’s Lawyer. Being that he blogs over the weekend, he beat us to the punch. Mr. Fox, as his blog’s title indicates, is an Austin attorney who represents employers in employment disputes. Being that arbitration cases are often also employment cases, I would guess we will see more overlap in the future between our blog and Mr. Fox’s. Technorati Tags: arbitration, ADR, Fifth Circuit, law

Let’s all admit and accept the truth – within the next 10 years THE primary disputing system for most civil matters will be arbitration. Trial courts, juries and appellate courts will continue to dominate criminal and family matters and some personal injury cases. Who knows what will happen with cases involving Information Law. Whine about it, complain, tilt at windmills, but get over it – and quickly. Staying out of arbitration or challenging an arbitrator’s award are now virtually impossible in either state or federal courts in Texas (the archives on this blog for the Law of Arbitration are littered with posts about recent cases supporting this proposition). Thus, let’s now start looking at discovery and evidence in arbitration proceedings. The implicit deal is supposed to be easy introduction of all sorts of evidence that would not come in at trial, in return for much more limited discovery. But wait. How do I know if thousands of unrelated arbitrators all over the world are keeping the deal? There’s no body of rules common to each jurisdiction and no reporter system so I can read cases reviewing what happened on these points and learn what’s discoverable or how to get it into evidence before the arbitrator. Over the next several months, we will be exploring these issues. We invite your comments and hope we can get a conversation started. Technorati Tags: arbitration, law, ADR, dispute resolution

This morning, the Texas Supreme Court reversed trial court and Tenth Court of Appeals findings that Kroger was liable for injuries one of its employees sustained while helping a customer load grocery bags into her car. The employee in question had placed one hand on the customer’s car door jamb while steadying the cart with his foot when the customer slammed her car door on his hand (the parking lot was on a slope, hence the foot-steadying). Kroger is a non-subscriber to workers’ compensation insurance, which means that injured employees must establish that some negligence on their employer’s behalf cause their injuries to recover damages; in other words, “[nonsubscribing] employers are not insurers of their employees.” In this case, the Supreme Court found that since grocery customers throughout the nation seem competent to load groceries into cars, Kroger had no obligation to provide its clerks with specialized training in the art. Using an unusual grocery-loading methodology like the one described here constitutes “a danger known to all,” so Kroger had no duty to warn its employees not to attempt such maneuvers. The Court therefore reversed decisions by both the trial court and court of appeals, based on its no-duty finding. Kroger v. Elwood, Cause No. 04-1133 Technorati Tags: litigation, Texas Supreme Court, law

On January 12, 2006, we blogged about the Fifth Circuit decision in the Positive Software case to vacate an arbitral award on the basis of an undisclosed conflict of interest. Today, the Circuit decided to rehear the case(link is to .pdf file) en banc. We will keep you posted on this and other exciting developments as they unfold. As yet, neither the new briefing schedule nor the oral argument had been set. Technorati Tags: arbitration, ADR, Fifth Circuit, law