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Posts Tagged ‘arbitrator’

The Supreme Court Weighs in on Arbitrability, But Questions Remain

Posted on: January 31st, 2019

By: Ted Peters

As reflected in a prior article, the United States Supreme Court recently agreed to take another look at the issue of arbitrability. In the case of Henry Schein, Inc. v. Archer & White Sales, Inc., the Fifth Circuit concluded that the court, and not an arbitrator, had the power to decide the threshold issue of arbitrability. In its ruling, the circuit court embraced the “wholly groundless” argument, concluding that submission of the dispute to the arbitrator was unnecessary because the assertion of arbitrability was “wholly groundless.” This decision underscored the ongoing split of authority among the lower courts wherein some courts, but not all, recognize the “wholly groundless” exception. On appeal, the appellants sought to have the Supreme Court reject the exception as inconsistent with the Federal Arbitration Act (“FAA”), the purpose of which is “to ensure that private agreements to arbitrate are enforced according to their terms.”

On January 8, 2019, newly appointed Justice Kavanaugh delivered the opinion of the court vacating and remanding the Firth Circuit’s decision. Writing for a unanimous court, Kavanaugh determined that the “wholly groundless” exception to the general rule that courts must enforce contracts that delegate arbitrability questions to an arbitrator is inconsistent with the FAA and Supreme Court precedent. Not surprisingly, the opinion revisited a number of prior cases in which the Court repeatedly held that the “agreement to arbitrate a gateway issue is simply an additional… agreement the party seeking arbitration asks the federal court to enforce, and the [FAA] operates on this additional arbitration agreement just as it does on any other.” (Opinion at p. 4, quoting Rent-A-Center, 561 U.S. 63, 70 (2010)). Kavanaugh noted that the Court had frequently rejected the argument that a claim of frivolity can derail the parties’ agreement to vest questions of arbitrability with an arbitrator and not a court. Citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 568 (1960), Kavanaugh stated: “A court has ‘no business weighing the merits of the grievance’ because the ‘agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.’”

On January 15, 2019, the Court issued a ruling in yet another case involving arbitration, New Prime Inc. v. Oliveira. Justice Gorsuch delivered the opinion of the court. In an 8-0 decision (Kavanaugh took no part in the consideration or decision of the case), the high court affirmed the First Circuit’s determination that a court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration. Unlike Henry Schein, which addressed the delegation of “gateway” questions of arbitrability, New Prime Inc. involved the judicial assessment of a statutorily based objection to arbitration.

But wait… there’s (one) more: Lamps Plus Inc. v. Varela, Dkt. No. 17-988. That case, argued on October 29, 2018, addresses whether the FAA forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements. An opinion is expected at any time.

Coming full circle, it is fairly clear that the high court seems to remain firm in its embrace of arbitration agreements without permitting judicial meddling, provided there is “clear and unmistakable evidence” that the parties affirmatively agree to delegate the decision of arbitrability to the arbitrator. (Henry Schein at p. 6, citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944). Yet, at the same time, the Justices appear receptive to judicial involvement as long as there is a reasonable statutory basis for it.

The takeaway? Parties to arbitration agreements should rest confident in their ability to affirmatively delegate disputes to arbitration provided that the statutory framework upon which arbitration is based leaves no basis for judicial tinkering. This may provide solace for some, but for many it leaves unanswered questions along with the risks and costs associated with uncertainty.

If you have questions or would like more information, please contact Ted Peters at [email protected].

Arbitrability – Who Decides?

Posted on: September 14th, 2018

By: Ted Peters

The question of arbitrability (i.e., Who decides whether a dispute is arbitrable? The court or the arbitrator(s)?) is as ageless as the conundrum of what came first, the chicken or the egg.  In 2010, the Supreme Court decided Rent-a-Center, Vest Inc. v. Jackson, wherein it concluded that agreements to arbitrate questions of arbitrability are, themselves, enforceable.  That dispute involved an employee who had signed an arbitration agreement that provided for arbitration of disputes arising out of his employment, including discrimination claims.  The agreement expressly provided that the arbitrator, and not a court, had the exclusive authority to resolve any disputes relating to the enforceability of the arbitration agreement.  The Ninth Circuit Court determined that the employee’s argument that the agreement was unconscionable was a matter of fact for the court rather than the arbitrator.  In a split vote, the Supreme Court found otherwise, and concluded that because the employee challenged the agreement as a whole (and not only the delegation provision), the determination had to be made by the arbitrator.

The US Supreme Court will weigh in again on the issue of arbitrability. On June 25, 2018, the Court accepted certiorari in the case of Henry Schein, Inc. v. Archer & White Sales, Inc., a case in which the Fifth Circuit addressed the arbitrability of antitrust claims asserted against a distributor of dental equipment.  The defendants/appellants sought to enforce an arbitration agreement.  The magistrate granted a motion to compel arbitration, concluding that the threshold question of the arbitrability of the claims was vested in the decision of an arbitrator, and not for a court to decide.  The district court, however, reversed, finding that it had the authority to rule on the question of arbitrability and concluded that the claims at issue were not arbitrable.  The Fifth Circuit affirmed finding that submission of the dispute to the arbitrator was not necessary because the assertion of arbitrability was “wholly groundless.”  The appellate court explained that the arbitration clause in question created a carve-out for “actions seeking injunctive relief,” but did not limit the exclusion to “actions seeking only injunctive relief.”  The court reasoned that even though the agreement would allow the plaintiff/respondent to avoid arbitration by simply adding a claim for injunctive relief did not change the clause’s plain meaning.

The decision in Henry Schein underscores that a conflict has developed among the lower courts; some recognizing an exception for “wholly groundless” claims of arbitrability, but others not.  Defendants/appellants seek to have the Supreme Court reject the “wholly groundless” exception, asserting that the Fifth Circuit’s decision cannot be reconciled with the Federal Arbitration Act’s text or its overarching purpose: “to ensure that private agreements to arbitrate are enforced according to their terms.”  The question presented before the Court is simple: “Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

Oral argument is scheduled for October 29, 2018.

If you have questions or would like more information, please contact Ted Peters at [email protected].

Using Summary Judgment during the Arbitration Process

Posted on: February 22nd, 2018

By: Erin E. Lamb

Many attorneys assume that once a case is in private arbitration, dispositive motions are against the rules and are no longer a useful tool to resolve cases. How could an arbitrator have the power to consider a dispositive motion? After all, arbitration is sold to all parties as a process that all parties must willingly opt into — in the interest of limiting the complexities of arbitration, not adding to them, as dispositive motions do. Most attorneys participating in arbitration therefore would never think of pursuing dispositive motions, even when faced with res judicata or statute of limitations issues.

This is an incorrect and unduly limiting view of the arbitration process. None other than the Supreme Court of the United States, has upheld the power of an arbitrator to adopt procedures necessary to give effect to the parties’ arbitration agreement. Stolt-Neilsen v. AnimalFeeds International, 559 U.S. 663 (2010).  It’s up to the arbitrator to determine procedural questions by looking at the arbitration agreement. In turn, most arbitration agreements invoke an arbitration providers’ rules. Most rules, including the most recent American Arbitration Association rules (last updated in 2009), indirectly give arbitrators expansive powers and wide latitude in the procedures used to give effect to the arbitration agreement.

The 2009 American Arbitration Association rules, still in effect ten years later, state that arbitrators are required to “take such steps as they may deem necessary or desirable to avoid delay and to achieve just, speedy, and cost-effective resolution of large, complex, commercial cases.” In fact, in AAA commercial cases, the rules directly address dispositive motions: “The arbitrator may allow the filing of and make rulings upon a dispositive motion only if the arbitrator determines that the moving party has shown that the motion is likely to succeed and dispose of or narrow the issues in the case.” The use of “only” makes the rule seem limiting; in reality, it directly gives arbitrators the ability to hear and rule on said motions. Multiple federal courts have affirmed arbitration awards where the arbitrator ruled on a motion for summary judgment or on summary disposition. Some arbitration provider’s rules even specifically allow for it – the JAMS rules specifically allow for the filing of dispositive motions even under objection from the other side.

Simply put, unless your arbitration agreement specifically, plainly, and expressly prohibits dispositive motions, an arbitrator is empowered to grant any relief necessary to reach a final determination of the matter, including dispositive motions. Only in the face of a specific written agreement would an arbitrator be acting outside the contractually delegated authority of the arbitration agreement. This is an important thing to consider for all attorneys in arbitration cases – and at the time of the agreement to arbitrate, not after.

If you have any questions or would like more information, please contact Erin Lamb at [email protected].

Supreme Court Upholds Arbitrator’s Class Ruling

Posted on: June 14th, 2013

By: Anthony Del Rio

This week, in Oxford Health Plans v. Sutter, the Supreme Court upheld the authority of an arbitrator to interpret an agreement to permit class arbitration.  While the Court expressed some doubt regarding whether the arbitrator made the correct decision, the Court unanimously agreed that “courts have no business overruling [an arbitrator] because their interpretation of the contract is different from [the arbitrator’s].”

In Sutter, Oxford Health entered into an employment agreement with Dr. Sutter that included an arbitration provision. Dr. Sutter filed a putative class action against Oxford Health, and Oxford Health moved to compel arbitration.  The agreement did not include an explicit class waiver, and the parties disputed whether the arbitration could proceed on a class basis.  The arbitrator ultimately ruled in favor of Dr. Sutter and interpreted the agreement to allow for class arbitration.  The arbitrator reasoned that the language “any civil action” included class actions.

The Court’s holding highlights the importance of expressly precluding class arbitrations in agreements.  An arbitration agreement is a very helpful tool employers can use to protect themselves, but their effectiveness can be undermined if the provisions are not properly drafted.

It should be noted that, in 2012, the NLRB adopted the position that class waivers were impermissible. However, the NLRB’s interpretation has been widely rejected by federal courts.