Usually “Highlights” focuses on federal cases.  However, Cardozo Law School recently published an important article on the direction in which arbitration may be moving.  That article is today’s lede.  However, this issue also cover cases, including one from the Fifth Circuit that has gotten a lot of attention in the insurance coverage world.  Where Is Arbitration Going? One of the most important and interesting items that was published recently is an article by Imre Szalai, a professor at Loyola University New Orleans College of Law, The Future of Arbitration in the United ..read more

Today’s cases give us two interesting considerations of stay issues during various stages of arbitration-related litigation and more discussion of the recurring question of contract formation v. scope.  NB – I’m writing today’s “Highlights” while out of the office and without a printer.  Frankly, I don’t proofread very well on screen, so please be patient with any typos.  Thanks. Stay Pending a Decision on Motion to Compel In Coinbase v. Bielski, 599 U. S. 736 (2023), SCOTUS held that the District Court must stay litigation during the pendency of an appeal from the court’s denia ..read more

There’s only one case today, but it is a template for thinking through issues related to the delegation of threshold arbitration issues. Delegation clauses; Stay v. Dismissal One of the recurrent issues in ADR jurisprudence is that of delegation – in other words, who decides questions like the unconscionability of an arbitration clause or whether arbitration covers a particular dispute. Judge Pitts addresses those questions and more in a very well-organized, thoughtful opinion in Davenport v. Nvidia Corp., 2024 U.S. Dist. LEXIS 34483 (N.D. Cal., February 28, 2024). The court first distinguishe ..read more

The case law is fairly scant, but there is a well-written and imaginative law journal article which seeks to solve a real-world problem in obtaining testimony in international arbitrations.  Congratulations to the author; we need to recognize young talent. Discovery for Use in Foreign Arbitrations In 2022, SCOTUS resolved a Circuit split and held that 28 U.S.C. § 1782 does not authorize a District Court to issue subpoenas to obtain testimony for use in arbitrations outside the U.S. ZF Auto US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (2022).  But does that completely close the door on ..read more

The main news in the arbitration world since the last “Highlights” is the argument of two cases – one of them very significant – before the U.S. Supreme Court.  By the end of the Term, we should have some clarity a major issue regarding the Section 1 exceptions to the FAA.  In the meantime, here is some news from the District Courts. SCOTUS The Supreme Court heard two arbitration cases, one of which was argued today.  Last week, the Justices heard argument in Bissonnette v. LePage Bakeries Park St., LLC,  Dkt. No 23-51, which raises the question of whether the folks who del ..read more

Just one case today, but it is an important one, as the Second Circuit considers an attempt to by-pass the FAA’s restriction on certain appeals and expands the nature of irreparable harm in considering an application to enjoin an arbitration. Appellate Jurisdiction; Effect of Arbitration Agreement’s Choice of Law; Substantive v. Procedural Law; Uniform Arbitration Act; Irreparable Harm The Resource Group International, Ltd. v. Chishti, 2024 U.S. App. LEXIS 1378 (2nd Cir. January 22, 2024), is an important read for those engaged in arbitration-related litigation.  Procedurally, it is an ap ..read more

This is a quiet day in the decision department, so here’s a quick look at a pending cert.  petition. Stay v. Dismissal I usually don’t review petitions in the U.S. Supreme Court unless the Justices grant cert.  However, a petition that has been circulated for consideration at this  Friday’s conference is worth a look.  Smith v. Spirrizzi, Dkt. No. 22-1218, addresses the Circuit split over whether Section 3 of the Federal Arbitration Act limits a court to staying an action when compelling arbitration or whether the judge has discretion to dismiss the case if all issues in di ..read more

Welcome to 2024.  The courts wrapped up last year with both substantive and procedural issues. Delegation through Adoption of the AAA Rules; Unsophisticated Parties Courts for a number of years have held that the incorporation of the AAA or JAMS rules delegate many gateway issues, such as arbitrability, to the arbitrator.  Many of those cases, however, arise in the context of sophisticated business parties.  Some courts have questioned whether the rule should apply to unsophisticated, e.g. consumer, parties, who might not understand the full impact of a reference to an instituti ..read more

As usual during the weeks around Christmas and New Years Day, the courts have been fairly quiet.  But, here are a couple cases of interest and an important journal article. Delegation of Gateway Issues through the Adoption of Rules; London Maritime Arbitrators Association; “Arising from” It is now black letter law, except, perhaps, in the context of consumer cases, that the invocation of the rules of the AAA or JAMS delegates the resolution of threshold issues, such as arbitrability, to the arbitrator.  America Chung Nam, LLC v. Mitsui O.S.K. Lines, Ltd., 2023 U.S. Dist. LEXIS 227709 ..read more

Cases were slim yesterday – in fact, virtually non-existent.  So, I’ll use this “Highlights” to point you to some articles on the issue of the day.  Will AI put arbitrators out of business?    Artificial intelligence and Arbitration The discussion over Artificial Intelligence takes me back to the scene in the 1968 movie, 2001 Space Odyssey, where HAL, the AI operating system running a space craft, decides to kill the astronauts because it figures that they are jeopardizing the mission.  Maybe because one of the astronauts was David Bowman, I get a little paranoid about ..read more