Karl Bayer's Disputing Blog

Global Arbitration Review Article: ‘Bad Faith’ Costs Decision Upheld

By Victoria VanBuren - July 22, 2009

Last week, the Global Arbitration Review published an interesting article about a recent case, ReliaStar Life Ins. Co, of N.Y. v. EMC Nat’l Life Co., No. 07-0828 (2nd Cir. Apr. 9, 2009). As previously blogged here, in ReliaStar, the Second Circuit held that inclusion in an arbitration agreement of a broad statement that each party will bear the expenses of its own arbitrator and attorney’s fees, does not deprive the arbitration panel of authority

Sonia Sotomayor Meets Posner: Standards of Review for Arbitration Awards After Hall Street

By Victoria VanBuren - June 2, 2009

Over the past year, the circuit courts have differed over whether the “manifest disregard of the law” doctrine survives the U.S. Supreme Court’s holding in Hall Street. Hall Street Assoc. v. Mattel, Inc., 128 S. Ct. 1396 (2008). In a recent article, Philip J. Loree Jr. analyzes the Second Circuit’s interpretation of Hall Street in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2008). Interestingly, the

Judge Sonia Sotomayor on Arbitration

By Victoria VanBuren - May 20, 2009

[Ed. note: Obama nominated Sotomayor on May 26; see Hispanic National Bar Association Press Release] Ever since U.S. Supreme Court Justice David Souter revealed his plan to retire, speculation of possible President Barack Obama‘s picks to replace him has flooded the blogosphere. SCOTUSblog has been profiling the “shortlist” candidates with an analysis of their opinions that intersect the Supreme Court’s decisions. Here is

Second Circuit Rules on Expenses of Arbitration

By Victoria VanBuren - April 9, 2009

Today, the Second Circuit decided ReliaStar Life Ins. Co, of N.Y. v. EMC Nat’l Life Co., No. 07-0828 (2nd Cir. Apr. 9, 2009). The court held that inclusion in an arbitration agreement of a broad statement that each party will bear the expenses of its own arbitrator and attorney’s fees does not deprive the arbitration panel of authority to award those expenses as a sanction against a party whom the panel determines failed to arbitrate

Second Circuit Denies Oracle’s Motion to Compel Arbitration

By Victoria VanBuren - April 1, 2009

The Second Circuit ruled recently on the case Arbercheski v. Oracle Corp., No. 06-3472, 2009 U.S. App. LEXIS 5723 (2nd Cir. Mar. 18, 2009) that Oracle has waived its right to arbitration. The court concluded that the plaintiff showed sufficient prejudice from Oracle’s attempt to initiate arbitration proceedings. Some of the facts the court cited were: Oracle’s eleven-month delay between the commencement of litigation and the filing of

U.S. District Court Denies Nokia’s Request to Compel Arbitration

By Victoria VanBuren - March 11, 2009

Last week, the U.S. District Court for the Southern District of New York refused to compel arbitration on the grounds that Nokia had waived its rights to arbitrate through its conduct in prior proceedings. The case, Nokia Corp. v. InterDigital, Inc. (2009 U.S. Dist. LEXIS 17376) relates to patent infringement and was heard by the Second Circuit on July 31, 2008 (2008 U.S. App. LEXIS 16328). Back then, the Second Circuit concluded that Nokia waive

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

Dead? Alive? Matter of Opinion?

By Karl Bayer - December 4, 2008

Hall Street and its progeny may have killed “manifest disregard” but the Second Circuit could have just resuscitated it; well, if you consider zombies as resuscitated beings. In Stolt-Nielsen SA v. Animalfeeds Int’l Corp., the Second Circuit held a court may still review whether an arbitrator manifestly disregarded the law, within Section 10 of the FAA. So is manifest disregard still a standard to be followed by the courts? It appears that if you

More Texas Bloggers Discuss Arbitrability

By Rob Hargrove - February 14, 2007

Barry Barnett’s Blawgletter discussed a recent Second Circuit arbitrability opinion yesterday (Ross v. American Express). The opinion holds that Section 16 of the FAA, which allows interlocutory appeal of an order refusing to compel arbitration, applies in cases where the motion to compel arbitration was based not on a written agreement to arbitrate, but upon estoppel principles by which courts sometime compel non-signatories to arbitrate (