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All articles tagged '"arbitration clause"'
137 articles found
You Can’t Have It Both Ways: Fifth Circuit Finds Arbitration Waiver
By Victoria VanBuren - April 20, 2009
Last week, the Fifth Circuit decided Geraldine Nicholas v. KBR, Inc., No. 08-20140, (5th Cir. Mar. 15, 2009). The court affirmed the district court’s ruling denying Nicholas’ motion to compel arbitration of her contract dispute with KBR. Nicholas waived her right to arbitrate (pursuant to an arbitration clause) because she substantially invoked the judicial process to the prejudice of KBR. The court applied a two-prong test: Did Nicho
NY Federal Court Refuses to Compel Arbitration in Case Involving Law Student Loans
By Victoria VanBuren - April 14, 2009
The U.S. District Court for the Southern District of New York decided recently Fensterstock v. Education Finance Partners, Inc., No. 08-CV-3622, 2009 U.S. Dist. LEXIS 30457 (S.D.N.Y. 2009). Plaintiff Fensterstock claims, on behalf of a class, that defendants Education Finance Partners (“EFP”) and Affiliated Computer Services (“ACS”) improperly applied an undisclosed fee to his law student loans. EFP and ACS filed a motion
Federal Legislation on Alternative Dispute Resolution
By Victoria VanBuren - March 26, 2009
The following bills related to Alternative Dispute Resolution have been introduced recently by the 111st. Congress. H.R. 1214. Filed by Rep. Gutierrez, (D-IL) this bill, titled “Payday Loan Reform Act of 2009,” would amend the Truth in Lending Act to establish additional payday loan requirements to protect consumers. This bill, among other things, prohibits a mandatory arbitration clause that is “oppressive, unfair, unconscionab
U.S. Supreme Court Rules on Vaden v. Discover Bank
By Victoria VanBuren - March 19, 2009
Last week we blogged about the U.S. Supreme Court ruling on Vaden V. Discover Bank, No. 07-773, (U.S. Mar. 9, 2009). Justice Ginsburg delivered the opinion of the Court, joined by Scalia, Kennedy, Souter, and Thomas. Chief Justice Roberts concurred in part and dissented in part and was joined by Stevens, Breyer, and Alito. Here is a summary of the case. Discover Bank sued cardholder Vaden in Maryland state court to recover past due charges ($10,6
Fifth Circuit: Arbitrator Should Determine Arbitrability
By Victoria VanBuren - March 5, 2009
In Agere Systems Inc. v. Samsung Electronics Co., Ltd., (No. 07-40984), the Fifth Circuit held that the question of arbitrability should be decided by an arbitrator. The dispute between Agere Systems and Samsung Electronics arouse out of five patent cross-licensing agreements (dated 1990, 1995, 1999, 2000, and 2006). In 2006, Agere sued Samsung for breach of the licensing agreement and Samsung responded by invoking a mediation clause contained in
Class Action Arbitration Waiver Found Unenforceable
By Victoria VanBuren - February 12, 2009
On January 30th, 2009, the Second Circuit refused to enforce an arbitration clause contained in American Express Co. merchants’ agreement. In Re: American Express Merchants’ Litigation, No. 06-1871 (2d Cir. 2009). The clause would prevent merchants who accept the card from bringing class-action antitrust claims against American Express. Like the Texas Supreme Court in In re Poly-America, L.P., the Second Circuit cited section 2 of the
We Shall Not Waiver
By Karl Bayer - November 5, 2008
Perry Homes has once again been applied to describe what constitutes an arbitration waiver, except this time no waiver was found. As we have mentioned before in While We Were Out, a post from May, waiver is hard to come by in a Texas Supreme Court opinion. Perry Homes could have moved us into a parallel universe in which claiming waiver of arbitration is a winning argument. But those who criticized the opinion knew we would be making no such move
Supreme Court Reverts to Previous Stance on Waiver
By Rob Hargrove - May 21, 2008
Well, it took a couple weeks, but the Texas Supreme Court has reverted to its pre-Perry Homes stance on the circumstances in which a party may or may not waive its right to compel arbitration. On Friday, while we were otherwise indisposed and unable to blog, the Texas Supreme Court found that a party’s decision to remove a case to federal court (and then agree to a remand back to state court) did not “substantially invoke the judicial
While We Were Out: Texas Supreme Court Decides Perry Homes, et al. v. Cull
By Rob Hargrove - May 5, 2008
I picked the wrong week to go on vacation. While I was on an airplane coming back from France, the Texas Supreme Court issued its long-awaited opinion in the Perry Homes Case. The Texas legal blogosphere has already been all over it, and the Supreme Court of Texas Blog has posted a nice recap of the commentary. At the risk of coming to the party late, we’ll still offer some comments on Friday’s opinion. Robert and Jane Cull bought a h
Supreme Court Compels Shower Pan Arbitration
By Rob Hargrove - October 12, 2007
The Texas Supreme Court issued a per curiam mandamus opinion compelling an arbitration this morning in a class action suit which alleges that a home builder built a bunch of houses without shower pans. The opinion is not long, but it quickly dispenses with a number of the common contractual arguments parties raise when seeking to avoid arbitration. In other words, it is a handy primer for this type of arbitrability challenge, offering a sort of c
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