All posts by Sarah Cole

Searle Civil Justice Institute Finds Consumer Arbitration Fair

The Searle Civil Justice Institute recently added further evidence to inform the ongoing debate about the benefits and drawbacks of consumer arbitration. The March 2009 preliminary report, which reviewed 301 consumer arbitration cases administered by AAA, makes a number of findings: “The upfront cost of arbitration for consumer claimants in cases administered by the AAA … Continue reading Searle Civil Justice Institute Finds Consumer Arbitration Fair →

Pyett Analysis — Unions can waive but what is clear and unmistakable?

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As those of you who follow arbitration know, 14 Penn Plaza v. Pyett raised the age-old question whether a union can waive an individual employee’s right to bring a statutory claim in court by mandating that statutory claims be arbitrated through a clause negotiated in a collective bargaining agreement (“CBA”). The issue was initially resolved … Continue reading Pyett Analysis — Unions can waive but what is clear and unmistakable? →

Pyett Decided Today — Union can waive rights

The US Supreme Court today held that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. The Court did not overrule Gardner-Denver; rather, it distinguished it. The decision was 5-4 with Thomas writing the majority opinion. Here is the cite: http://www.supremecourtus.gov/opinions/08pdf/07-581.pdf I … Continue reading Pyett Decided Today — Union can waive rights →

Discover Bank v. Vaden Decided Today

Today, the Supreme Court held in Discover Bank v. Vaden, http://www.supremecourtus.gov/opinions/08pdf/07-773.pdf, that a district court should “look through” a petition to compel arbitration to determine whether the case is predicated on a controversy that “arises under” federal law. Jurisdiction cannot be established, however, by a counterclaim if the whole complaint does not “qualify for federal … Continue reading Discover Bank v. Vaden Decided Today →

Nebraska’s Highest Court Reverses Arbitration Award on Public Policy Grounds

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On February 27, 2009, the Nebraska Supreme Court rejected an arbitration award reinstating a state trooper who was fired for belonging to a group affiliated with the Ku Klux Klan. The court held that the arbitrator’s award should not be enforced because it violates the state’s public policy against race discrimination. (Nebraska State Patrol v. … Continue reading Nebraska’s Highest Court Reverses Arbitration Award on Public Policy Grounds →

Second Circuit Refuses to Enforce Class Action Waiver in Arbitration Agreement

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The Second Circuit ruled today that a class action arbitration waiver contained in credit card agreement was unenforceable. See In Re: American Express Merchants’ Litigation, No. 06-871 (2d Cir. 2009). The relevant part of the arbitration agreement stated: IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL … Continue reading Second Circuit Refuses to Enforce Class Action Waiver in Arbitration Agreement →

Class Action Arbitration Waiver in Consumer Contract Enforceable

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A federal district court in New Jersey held that a class action arbitration waiver contained in an arbitration agreement between a consumer and a business is enforceable even though the state court had held that such waivers are unconscionable. Litman v. Cellco Partnership, No. 07-CV-4886 (2008). See http://www.wileyrein.com/docs/docs/215.pdf The federal court found that the Federal … Continue reading Class Action Arbitration Waiver in Consumer Contract Enforceable →

Useful Information about Foreclosure Mediation

David Moora of the ABA Section on Dispute Resolution advised me about a new resource page regarding residential foreclosure mediation. The resources, put together by the ABA Section on Dispute Resolution’s Mediation Committee, include, “descriptions and links to programs from ten states that have mandated the use of mediation in foreclosure actions; the page also … Continue reading Useful Information about Foreclosure Mediation →

Settlement Rates for cases closer to 67% than 90%

From SSRN’s NEGOTIATION & DISPUTE RESOLUTION ABSTRACTS, another interesting article co-authored by Theodore Eisenberg, this time with Charlotte Lanvers: “What is the Settlement Rate and Why Should We Care?” The abstract of the paper states: After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different … Continue reading Settlement Rates for cases closer to 67% than 90% →