08
Sep

A previous post in this blog discussed the impact that arbitration rules can have on how an eventual dispute is resolved. In arbitration, the parties can chose—or even make—the rules that will apply. Often they will chose, without considering, AAA rules. A recent decision by the Washington Court of Appeals, Raven Offshore Yacht Shipping, LLP v. F.T. Holdings, LLC,[1] illustrates how adopting what would appear to be a “standard” set of institutional arbitration rules ...

19
May

It is important to understand the difference between a contractual provision requiring mediation or arbitration and one that makes mediation a condition precedent to arbitration or the filing of a lawsuit. Here is a typical arbitration clause: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be ...

16
Sep

Arbitration’s near-ubiquitous use in commercial contracts makes it appear to be a handy one-size-fits-all alternative to courtroom litigation for business disputes. Unfortunately, as with most things in the world of dispute resolution, looks can be deceiving. Here are several questions to ask when weighing whether arbitration will fit your particular business needs. How important is the case? As a general rule, the more important the case is to your business operations, the less likely you are to be content with ...

09
May

In the wake of AT&T Mobility LLC v. Concepcion[1], mandatory arbitration agreements have become increasingly common in consumer and employment contracts. The rise of arbitration agreements even caught the eye of the New York Times, which ran a three-part series about the “soaring number of consumer and employment contracts” containing arbitration clauses.[i] As discussed in earlier blog posts, when combined with a class-action waiver, arbitration agreements can effectively preclude class action ...

23
Nov

There are many reasons an employer may want to require arbitration of disputes with its employees. Arbitration can be (but is not always) less expensive than court litigation; arbitrations are not public and are often confidential; and an arbitration agreement can, when combined with a class-action waiver, effectively preclude employee class actions where the claims are not small. Earlier this month, the Washington Court of Appeals confirmed an employer’s right to require its employees to sign an arbitration ...

09
Oct

A waiver of the right to bring a class action is enforceable as part of an arbitration agreement, and a state law rule to the contrary is preempted by the Federal Arbitration Act, 9 U.S.C. §1, et seq.[1] The FAA does not, however, preclude a rule barring contractual waiver of a representative action that does not use a class procedure, according to a recent decision by the Ninth Circuit, Sakkab v. Luxottica Retail North America, Inc.[2] In ...

16
May

On May 14th, the partners of Savitt Bruce & Willey gave a CLE presentation to the Washington chapter of the Association of Corporate Counsel. The topic of discussion was “Finessing the Fine Print: Getting What you Want and Knowing What You’re Getting with Agreements to Arbitrate and Covenants not to Compete”.  The material was presented in two segments.   The first segment focused on the strategic use of agreements to arbitrate to ensure that the claims subject to arbitration are the ones ...