Mediator Opinion in Joint Statement Settling Ku v. Case Western Reserve Law School and Lawrence Mitchell Case

I am sure that many followers of this blog are aware that Raymond Ku, a professor at Case Western Reserve University’s Law School was suing its former Dean, Lawrence Mitchell, as well as the school. The case, Ku v. Lawrence E. Mitchell, et al., Cuyahoga County Court of Common Pleas Case No. CV 13 815935, is apparently settled. The parties issued a joint statement in which the mediator offers his opinion about the parties’ efforts during the mediation: http://www.chandralaw.com/The_Chandra_Law_Firm,_LLC/Blog_and_news/Entries/2014/7/8_Breaking__Joint_Statement_of_Professor_Raymond_Ku_and_Case_Western_Reserve_University_regarding_resolution_of_Ku_v._Mitchell%2C_et_al.retaliation_case.html. In this statement, the mediator, Michael Ungar, said, “In my opinion, Professor Ku acted in the best interests of students, staff, and faculty. . . .Likewise, in my opinion, the University has also acted in the best interests of the law school and all members of the school community. The devotion of both to students, staff, and faculty is unquestioned.” Ungar went on to add, “This has been a hard case, but everyone involved focused on finding a solution that would further the success and momentum of the law school. While the university and Professor Ku had significant differences regarding this matter, their sincere desire to act in the school’s best interests prevailed. I commend them all for their diligence, integrity, and willingness to look beyond individual disagreements and embrace collaboration toward a common goal. As is typical in these types of situations, the details of the resolution are confidential.”

Although the UMA, which is the law in Ohio, does not preclude the mediator from commenting to the press if the parties and the mediator agree to it, it seems odd for the mediator to express an opinion based on his evaluation of the parties’ actions and statements during mediation. Most mediators make a concerted effort not to engage in such evaluation during the mediation process.

Unconscionability Still Alive and Well?

From BNA Daily Labor Report:
“Justices Won’t Review California Ruling on Unconsionability of Wage Hearing Waivers
Posted June 09, 2014, 4:01 P.M. ET
The U.S. Supreme Court today let stand a California Supreme Court decision that a lower court may consider whether a waiver of any state administrative wage hearing makes an arbitration agreement unconscionable and thus unenforceable, denying an auto dealer’s petition to review the case ( Sonic-Calabasas A, Inc. v. Moreno, U.S., No. 13-856, cert. denied 6/9/14 ).
On remand from the U.S. Supreme Court, which directed the California high court to reconsider the case, the state court 5-2 found in October 2013 that state courts “may continue to enforce unconscionability rules that do not ‘interfere with fundamental attributes of arbitration’ ” (57 Cal. 4th 1109, 2013 BL 287605 (2013); 205 DLR A-1, 10/22/13).”

General Mills Reverses Course — Comments from Imre Szalai

I learned this morning that General Mills retracted its arbitration policy in the face of considerable criticism. See http://www.nytimes.com/2014/04/20/business/general-mills-reverses-itself-on-consumers-right-to-sue.html?_r=0.

Imre Szalai comments on the reversal:
“You have probably seen the news that general mills reversed itself this weekend after the public outcry over GM’s recently-implemented arbitration policy. I’m glad this 180 degree reversal occurred. I believe GM’s arbitration policy was one of the most aggressive, expansive, overreaching examples of an arbitration policy I have seen. Although section 1 of the agreement seemed to link the agreement to the use of GM’s website (which I believe is the correct way to interpret the agreement), the agreement also contains very broad phrases that a docket-clearing judge could have taken out of context in order to enforce the agreement through the mere purchase of a product from a grocery store, without the customer going online or even being aware of the agreement. Then, by ordering arbitration and staying the court proceeding, a judge can in effect preclude an immediate appeal on the order compelling arbitration in some jurisdictions. In my mind, GM’s policy was an attempt to suppress claims, not resolve claims.”

General Mills’ Arbitration Clause

I thought some of you might like to see the arbitration clause General Mills has on their website. To find it, you must click on legal terms on their home page. Here are the terms:

Legal terms

This page contains important legal terms affecting your relationship with General Mills, including all of its affiliated companies and brands. PLEASE NOTE THAT SECTION 3 BELOW CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS THE RIGHTS YOU HAVE IN ANY DISPUTE WITH GENERAL MILLS (INCLUDING ITS AFFILIATED COMPANIES AND BRANDS), INCLUDING DISPUTES ARISING OUT OF YOUR PURCHASE OR USE OF ANY GENERAL MILLS PRODUCT OR SERVICE FOR PERSONAL OR HOUSEHOLD USE, INCLUDING GENERAL MILLS PRODUCTS PURCHASED AT ONLINE OR PHYSICAL STORES.

General Mills’ affiliated brands and products include, but are not limited to: Betty Crocker, Pillsbury, Green Giant, Yoplait, Nature Valley, Old El Paso, Progresso, Hamburger Helper, Toaster Strudel, Gold Medal, Bisquick, Totino’s, Cheerios, Cinnamon Toast Crunch, Lucky Charms, Kix, Trix, Cocoa Puffs, Total, Wheaties, Fiber One, Chex, other General Mills Big G cereals, Box Tops For Education, and all other brands listed here. All of these brands and business are referred to collectively below as “General Mills.”

1. Your agreement to these legal terms

These terms are a binding legal agreement (“Agreement”) between you and General Mills. In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering, you are agreeing to these terms.

Of course, your decision to do any of these things (i.e., to use or join our site or online community, to subscribe to our emails, to download or print a digital coupon, to enter a sweepstakes or contest, to take advantage of a promotional offer, or otherwise participate in any other General Mills offering) is entirely voluntary. But if you choose to do any of these things, then you agree to be bound by this Agreement.

2. Duration of this Agreement; your right to terminate

This Agreement will remain in effect until terminated, subject to the following:
•You may terminate this Agreement by providing us with written notice of your desire to do so by emailing us at legal.terms@genmills.com. Please include your first and last name and the year in which you were born in the email. Any such termination will not be valid if you remain (at that time) a user or member or any of our sites or communities, a subscriber to any of our emails, or a participant in any sweepstakes, contest, or other General Mills offering where these terms have been presented. You can cease to be a member of our sites and online communities at any time by following the instructions in the terms of use provided at the website where the site or online community is located. You can cancel your subscription to any of our emails by clicking “unsubscribe” at the bottom of those emails and following the instructions provided.
•We may also terminate or modify this Agreement at any time and for any reason; provided, however, that in the event of a modification, this Agreement (in its unmodified form) will remain in effect until you agree to the modified Agreement by continuing to participate as a user or member or any of our sites or communities, as a subscriber to any of our emails, or a participant in any sweepstakes, contest, or other General Mills offering where these modified terms are presented.
•If either you or General Mills has validly terminated this Agreement, that termination will apply only on a going forward basis: you specifically agree that any dispute between us that relates in whole or in part to any activity, occurrence, transaction, damage, loss, or event arising or occurring prior to your termination of this Agreement will continue to be governed by this Agreement.
•If you have validly terminated this Agreement, but then subsequently resume your relationship with us (for example, by subscribing again to emails or once more becoming a member of one of our sites), the then-current version of this Agreement will restart at that point.

3. Dispute resolution; binding arbitration

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THAT YOU OR GENERAL MILLS MAY HAVE WITH EACH OTHER THROUGH INDIVIDUAL ARBITRATION INSTEAD OF THROUGH COURT TRIALS, JURY TRIALS, OR CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

This Section 3 is intended to be interpreted broadly to encompass all disputes or claims arising out of this Agreement or your purchase or use of any General Mills product or service for personal or household use. As noted above, “General Mills” includes any and all of General Mills’ affiliated companies or brands. These affiliated brands include, but are not limited to, Betty Crocker, Pillsbury, Green Giant, Yoplait, Nature Valley, Old El Paso, Progresso, Hamburger Helper, Toaster Strudel Gold Medal, Bisquick, Totino’s, Cheerios, Cinnamon Toast Crunch, Lucky Charms, Kix, Trix, Cocoa Puffs, Total, Wheaties, Fiber One, Chex, other General Mills Big G cereals, Box Tops For Education, and all other brands listed here.

ANY DISPUTE OR CLAIM MADE BY YOU AGAINST GENERAL MILLS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR PURCHASE OR USE OF ANY GENERAL MILLS SERVICE OR PRODUCT (INCLUDING GENERAL MILLS PRODUCTS PURCHASED AT ONLINE OR PHYSICAL STORES FOR PERSONAL OR HOUSEHOLD USE) REGARDLESS OF WHETHER SUCH DISPUTE OR CLAIM IS BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY (TOGETHER, A “DISPUTE”) WILL BE RESOLVED BY INFORMAL NEGOTIATIONS OR THROUGH BINDING ARBITRATION, AS DESCRIBED BELOW.

Informal negotiations
To expedite resolution and control the cost of a Dispute, you and General Mills agree to first attempt to resolve a Dispute informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations will commence upon written notice from one party to the other. You must send your notice to legal.terms@genmills.com. Please include in the subject line of the email “Request to Negotiate.”

Arbitration procedures
If you and General Mills are unable to resolve a Dispute through informal negotiations, either you or General Mills may elect to have a Dispute resolved by binding arbitration by notifying the other party of such election. Either party also may choose to seek relief in a small claims court for a Dispute within the scope of its jurisdiction, instead of arbitration. To make this election, the small claims court action must be commenced before either party notifies the other of an election to arbitrate the Dispute, but after the conclusion of the informal negotiation period described above. If neither party has validly commenced a small claims court action for a Dispute, any election to arbitrate the Dispute by one party will immediately become final and binding on the other.

You and General Mills agree to waive the right to litigate any Dispute in court (except in small claims court in the limited circumstances described above) and before a jury and agree that this arbitration provision will be governed by the Federal Arbitration Act to the maximum extent permitted by law. You and General Mills also agree that any arbitrator that arbitrates a Dispute under this provision is without jurisdiction to conduct a class arbitration or other representative proceeding, and may not consolidate one person’s claims with another.

You and General Mills agree that all issues of enforceability of this agreement to arbitrate – including issues relating to scope, validity, and unconscionability – will be decided by the arbitrator. If for any reason this arbitration provision is deemed inapplicable or invalid, you and General Mills both waive, to the fullest extent allowed by law, the right to a jury trial and any claims relating to a Dispute to recover punitive or exemplary damages and any right to pursue any claims on a class or consolidated basis or in a representative capacity. These waivers shall also apply to any proceeding in small claims court.

The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the AAA’s Supplementary Procedures for Consumer-Related Disputes (“AAA Consumer Procedures”), both of which are available at the AAA website www.adr.org or may be acquired by calling the AAA at 1-800-778-7879.

Any arbitration will be confidential, and neither you nor General Mills may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.

If any portion of this arbitration provision is determined by a court or the arbitrator to be inapplicable or invalid, then the remainder shall still be given full force and effect.

Costs of arbitration
Payment of all arbitrator compensation, expenses, and administrative fees (which include filing and hearing fees) will be governed by the AAA Consumer Procedures. Under those Procedures, and except as provided below, you are not responsible for paying any arbitrator compensation or expenses, and the only administrative fee you would be responsible for is a $200 filing fee. Moreover, if the relief you seek is less than $5,000, General Mills will pay the $200 filing fee. Regardless of the amount of your claim, however, the arbitrator may re-allocate compensation, expenses, and administrative fees if he or she determines that a claim or counterclaim was filed for purposes of harassment or is patently frivolous.

In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at the arbitration, except that General Mills will pay the costs relating to proof and witnesses produced at the direction of the arbitrator.

Should I Keep Eating Cheerios? Food Companies Using Arbitration

The New York Times reported yesterday on a new trend among companies selling food products — the use of arbitration clauses. General Mills reportedly created an arbitration clause that would bind consumers who engaged in certain kinds of activity on their website, including downloading coupons or liking their products on Facebook. While such clauses may not be enforceable (apparently the clause is not easily located on the General Mills website), it may well discourage consumers with claims against the company from bringing those claims (even though the company supposedly pays for the arbitration) and certainly suppresses class processes. Touting arbitration as a useful dispute resolution process is one thing; using it as a means to avoid class processes and discourage individual claims is another. See : http://www.nytimes.com/2014/04/17/business/when-liking-a-brand-online-voids-the-right-to-sue.html?hp&_r=0

NLRB files petition for rehearing in D.R. Horton (class arbitration) case

From BNA’s Daily Labor Report:

“The National Labor Relations Board March 13 filed a petition asking the U.S. Court of Appeals for the Fifth Circuit to rehear and reverse a 2-1 panel decision that rejected the NLRB’s position that class and collective action waivers in an employer’s mandatory arbitration policy interfered with employee rights under federal labor law ( D.R. Horton Inc. v. NLRB, 5th Cir., No. 12-60031, petition for rehearing 3/13/14 ).
The NLRB asked for a panel or en banc rehearing of the December 2013 decision that denied enforcement of a board order finding that homebuilder D.R. Horton Inc. violated Section 8(a)(1) of the National Labor Relations Act. The board held that the company illegally maintained and enforced a mandatory arbitration agreement that waived the rights of employees to participate in class or collective actions of their employment-related claims.
Calling the issue “exceptionally important,” the NLRB argued in the petition that the panel majority misconstrued the effect of U.S. Supreme Court decisions in several non-labor cases and failed to recognize that the “distinctive character” of the NLRA is its guarantee of protection for employees who act in concert for their mutual aid or benefit.”

Professor Nancy H. Rogers to Give 2014 Schwartz Lecture at Moritz College of Law on March 25

The 2014 Schwartz Lecture on Dispute Resolution will be given by The Ohio State University Moritz College of Law’s own Nancy Hardin Rogers. She will be presenting on her current project looking at the role of institutions and dispute resolution providers in reducing polarization in public conflicts. Public institutions fund interventions by dispute resolution practitioners into highly-charged, wide-ranging conflicts, such as the 2001 Cincinnati riots following a police shooting and the unrest after the 2012 Trayvon Martin shooting and the acquittal of the shooter. With more and more stories of these interventions, the time seems right to assess how courts or executive branch agencies can intervene effectively without undermining other key roles they play in society, including their roles as neutral decision-makers, investigators, or prosecutors. Professor Rogers reviews the formidable challenges to institutionalizing these customized interventions and suggests a series of questions to ask before deciding what institution should manage them.

Nancy’s lecture will take place on March 25, 2014 in the Saxbe Auditorium at the Moritz College of Law at the Ohio State University at 4 p.m. Reception to follow.

Moritz College of Law Professor Nancy H. Rogers wins CPR’s James F. Henry Award for Distinguished Contribution to Dispute Resolution

I am very pleased to share that my colleague and co-author Nancy Hardin Rogers was honored with the prestigious James F. Henry Award from the International Institute for Conflict Prevention & Resolution (CPR).

As many of you know, the institute is an independent nonprofit organization comprised of global corporations, law firms, scholars, and public institutions dedicated to the principles of commercial conflict prevention and alternative dispute resolution (ADR). Nancy received the award, on February 20th at a ceremony held at the Charleston Place, Charleston, South Carolina, for her lifelong leadership, innovation, and sustaining commitment to the field of ADR, and in particular, her work on the development of the Uniform Mediation Act.

Nancy is very deserving of this award. She has co-authored an award-winning treatise on mediation; the leading textbook about dispute resolution, which is in its sixth edition; and a textbook on dispute system and process design. She served as the dean of The Ohio State University Moritz College of Law until 2008, when she was asked to serve as Ohio Attorney General. She was president of the Association of American Law Schools, the national educational association of 176 law schools and the academic society for law teachers, in 2007.

Her list of awards and achievements is great and includes a gubernatorial appointment as one of Ohio’s five commissioners on the National Conference of Commissioners of Uniform State Laws and a presidential appointment to the board of directors of the Legal Services Corporation.

To read more about her award, please visit the CPR website.

Ohio State Journal on Dispute Resolution Symposium on Special Education and Dispute Resolution

I wanted to let our readership know that the Ohio State Journal on Dispute Resolution will be holding its annual symposium next month, this time focusing on Dispute Resolution in Special Education. The symposium will take place at the Moritz College of Law at the Ohio State University and will comprise a number of events beginning the afternoon of Thursday, February 27 and continuing through Friday, February 28. The Symposium is free and open to the public. More information about panelists and registration can be found on the website:

http://moritzlaw.osu.edu/students/groups/osjdr/symposium-2.

The current agenda for the conference is as follows:

Thursday, February 27

Moritz College of Law (Barrister Club)

• 2:00-5:00 p.m. – State Practices Roundtable

Friday, February 28, 2014

U.S. Bank Conference Theater, Ohio State Union, 1739 N. High Street, Columbus, OH 43210 (across the street from the Moritz College of Law)

• 8:00 – 9:00 a.m. – Coffee and Registration
• 9:00 – 10:00 a.m. – Child Find
• 10:15 – 12:00 p.m. – Dispute Resolution Design
• 12:00 – 1:45 p.m. – Lunch at the Barrister’s Club: 25 West 11th Avenue (next to Panera Bread)
• 2:00 – 4:00 p.m. – Section 504 and IDEA Enforcement Mechanisms

Please come if you can!

Unsurprising Sixth Circuit Decisioin that Propriety of Class Arbitration is a Gateway Question and that Silent Clause Doesn’t Permit Class Arbitration

From the Employer Law Report (Caroline Gentry):

The Sixth Circuit held that courts, not arbitrators, must decide the “gateway” issue of whether an arbitration clause permits classwide arbitration—and that clauses that are silent on the issue do not permit classwide arbitrations.
In Reed Elsevier, Inc. v. Crockett, No. 12-3574, (6th Cir. Nov. 5, 2013), the plaintiff was a Texas attorney who alleged that his firm was being charged steep fees for using research databases outside of its LexisNexis Subscription Plan without any displayed warning. The parties’ contract contained an arbitration clause that was silent on the issue of classwide arbitration. Crockett filed a classwide arbitration demand for $500 million on behalf of two putative classes, and LexisNexis asked a federal district court to declare that the arbitration clause did not authorize classwide arbitration. The district court awarded judgment to LexisNexis.
On appeal, Crockett argued that an arbitrator, rather than a court, should have decided whether the arbitration clause authorizes classwide arbitration. The Sixth Circuit disagreed. Resolving an issue left open by the United States Supreme Court, it held that “the question whether an arbitration agreement permits classwide arbitration is a gateway matter, which is reserved ‘for judicial determination unless the parties clearly and unmistakably provide otherwise.’” The Sixth Circuit concluded that because the arbitration clause was silent on the issue of classwide arbitrability, it did not “clearly and unmistakably” assign that question to an arbitrator and the court was therefore the proper decisionmaker.
Turning to the parties’ arbitration clause, the Sixth Circuit held that because it did not expressly address classwide arbitrations it must be read to bar them. The court felt compelled to reach this conclusion even though “[t]he idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction,” the arbitration clause appeared in an “adhesion contract” and its provisions made Crockett’s individual claim “economically unfeasible.” Nevertheless, the Sixth Circuit concluded that under United States Supreme Court precedent, the arbitration clause was not unconscionable and it must be interpreted to bar classwide arbitrations.
Reed Elsevier is a major win for companies and employers. Classwide arbitrations are effectively barred unless they are expressly authorized by an arbitration clause. Defendants can ask courts to enforce this limitation at the outset and need not submit the question to an arbitrator, who may rule differently and whose decision is not easily appealable. Finally, plaintiffs cannot avoid these results by arguing that the parties’ contract is one-sided, adhesive or unconscionable. All of these holdings are a major win for companies and employers that do not want to be forced to defend class arbitrations.

Opportunity to Discuss ADR and Religion in Aspen

I received this announcement about a conference on Dispute Resolution and Religion that I thought others might find interesting:

The Aspen Center for Social Values presents Alternative Dispute Resolution: Is This the Future of Law? June 8-10, 2014. The submission deadline is Nov. 30, 2013.
The Conference seeks to engage scholars of Jewish studies, and Law & Religion, on the theme “Alternative Dispute Resolution: Is this the future of law?”, with a particular focus on religious courts of arbitration. Our approach is interdisciplinary, and we welcome proposals for papers from scholars of all fields, including history, law, cultural studies, and the social sciences. We envision panels on some of the following themes, and we welcome submissions that have a historical perspective as well as a contemporary one:
 Recent Developments in ADR
 Marriage, Divorce, & ADR
 Enforcing Religious Arbitration
 Islamic Law in America
 ADR: Are Jewish Courts a Good Model for Success?

Link to: http://www.theaspencenter.org/general/cfp-alternative-dispute-resolution-is-this-the-future-of-law/

Job Opportunity in Dispute Resolution Teaching

I recently received this job announcement for professorial positions in dispute resolution. Looks like a great teaching opportunity!
2 Faculty Positions in Conflict Resolution:
One Assistant Professor, and one Associate Professor

Description:

The Graduate Programs in Conflict Resolution at the University of Massachusetts Boston seek to hire both a junior and a senior faculty member to begin September 1, 2014. The programs are part of the Department of Conflict Resolution, Human Security and Global Governance, in the McCormack Graduate School of Policy and Global Studies. The new faculty members may also have teaching and mentoring opportunities in the department’s Ph.D. program in Global Governance and Human Security.

Each candidate should be able to contribute to, and strengthen, the conflict resolution program core: conflict resolution theory, negotiation, and mediation. We have a special need for faculty who can teach about conflict in organizations, both domestic and international. Other areas of expertise that would be of interest and would fit well with existing faculty, programming, and student interest include, but are not limited to: regional conflicts in the U.S. and elsewhere; international conflict; identity-based conflict; environmental conflict; conflict in healthcare; community-based conflict; restorative justice; post-conflict reconciliation; deliberative democracy/public disputes; facilitation; and ombuds processes and systems.

Faculty will teach, generate and conduct research, mentor graduate students at the MA and Ph.D. levels, and attract extramural funding. We are strongly oriented toward integrating theory and practice, and engaging our students in both our fieldwork and our research, and will look for the same in the new hires. Preference will be given to applicants with backgrounds in social and behavioral sciences including conflict resolution, psychology, anthropology and ethnography, sociology, and political science.

UMass Boston serves a diverse student population in an urban environment on Boston’s waterfront. Many of our students have come to Boston from cultures around the world. The University offers many opportunities for students and faculty to participate in global service, research and education in countries all over the globe. The University offers strong internal and external mentoring programs for faculty and a wide range of multidisciplinary and interdisciplinary collaborative research opportunities.

Qualifications for the assistant professor position include: a strong publication record; teaching and mentoring experience; and a record of generating external grant and contract funding. Qualifications for the associate professor include the above, as well as an established reputation, and experience leading significant projects that include fieldwork experience for students. All candidates should hold a Ph.D. or the terminal degree in their field.

To apply:

Please submit a cover letter and curriculum vitae to: http://umb.interviewexchange.com/candapply.jsp?JOBID=42639

Please have three letters of recommendation sent to the Search Committee Chair, Eben Weitzman, at conflict@umb.edu.

Review of applications will begin 10/25/13 and continue until position is filled.

For more information about the Graduate Programs in Conflict Resolution and the department, please visit www.conflict.umb.edu. For more information about the McCormack Graduate School please visit http://www.umb.edu/academics/mgs.

UMass Boston is an Affirmative Action, Equal Opportunity, Title IX Employer.

FINRA Arbitration Rules Prohibiting Class Waiver NOT Preempted

From the BNA Labor Reports: “A federal district court in New York Sept. 11 declined to compel financial solutions analysts pursuing a class and collective overtime action against brokerage firm Merrill Lynch to individually arbitrate their claims under the procedures of the Financial Industry Regulatory Authority (Zeltser v. Merrill Lynch & Co., S.D.N.Y., No. 1:13-cv-01531, 9/11/13).
The Merrill Lynch employees, like others in the securities industry, were required to sign agreements to arbitrate any dispute with the firm, but Judge Harold Baer of the U.S. District Court for the Southern District of New York said FINRA’s arbitration code does not permit class or collective actions. Baer denied the employer’s request that he order the employees to take their claims to FINRA as individuals, and he rejected the brokerage firm’s alternative request that he dismiss the lawsuit.
The brokerage firm challenged a FINRA rule that prohibits enforcement of arbitration agreements against participants in ongoing class or collective actions, but Baer rejected the firm’s contention that the rule is preempted by the Federal Arbitration Act.”

Interesting development on the preemption front.

Is wrongful death lawsuit subject to arbitration?

Over at health law prof blog, Katharine Van Tassel reports about a cert petition filed at the Supreme Court. I hope the Court takes the case! See http://lawprofessors.typepad.com/healthlawprof_blog/ (July 7th post)

“In early 2013, a nursing home operator filed a writ of certiorari asking the U.S. Supreme Court to determine whether state courts can refuse to enforce an arbitration agreement signed by the now deceased resident in a wrongful death action brought by the resident’s survivors under the Federal Arbitration Act (FAA).[1] In its petition, SSC Odin Operating Co. asserted that there is a conflict among the highest state courts over whether wrongful death plaintiffs are bound by arbitration agreements signed by their decedents.

In the case involving Odin Operating Company, the Illinois Supreme Court refused to enforce an arbitration agreement between a nursing home and a deceased resident that allegedly required arbitration of wrongful death claims asserted by the resident’s heirs, personal representative and estate administrator.[2] The Illinois Court explained that the wrongful death claim was not an “asset” of the estate that could have been encumbered by the decedent, the derivative nature of the claim did not require arbitration and basic contract principles barred the enforcement of the arbitration agreement against the administrator.

The Kentucky Supreme Court [3] also held that wrongful death plaintiffs cannot be compelled to arbitrate claims. According to the Kentucky Court, under Kentucky law, wrongful death claims are not derivative, but accrue separately to the beneficiaries and are meant to compensate them for their loss. Courts in four other states, Missouri, Utah, Ohio, and Washington, have ruled similarly.[4]

In contrast, the Texas Supreme Court held that the FAA preempts a state rule of law treating arbitration agreements signed by decedents differently than other types of contracts signed by decedents.[5] The Court held that contracts signed by decedents generally are enforceable against their estates. To hold otherwise would create an anomaly as the estate would be bound by a contract in which the decedent completely disposed of the claim, but would then not be bound by an agreement that changed the forum in which the claim would be resolved.

The Florida Supreme Court recently used similar reasoning to declare an arbitration agreement enforceable against wrongful death plaintiffs.[6] The Court found that a survivors’ right to recover damages under the state’s wrongful death act is predicated on the decedent’s right to recover in a personal injury action. As a result, survivors cannot recover in actions where the decedent previously won damages or settled an action based on the same injuries that caused his or her death, or signed a document releasing the tortfeasor from liability.”

Supreme Court Affirms Commitment to Narrow Judicial Review of Arbitration Awards in Sutter Decision

Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement, not whether the arbitrator correctly or incorrectly interpreted the agreement. In other words, as long as the arbitrator is doing his job of interpreting the contract, “the courts have no business overruling him because their interpretation of the contract is different from his.” This decision will enable arbitrators, interpreting arbitration agreements that do not contain class arbitration waivers, to order class arbitration. While this is a result that the Court dislikes, given its past negative comments about class arbitration, the decision is correct because it affirms the long-held understanding that courts should narrowly review arbitration awards and overturn them only when the arbitrator did not do his job (i.e. failed to interpret the contract). In the short term, this decision may result in more class arbitrations. Over time, however, parties will redraft their arbitration agreements to explicitly preclude class arbitrations. While this decision is a short term victory for consumers and employees not subject to class arbitration waivers, eventually this decision will lose relevance because businesses will redraft their arbitration agreements with consumers and employers to explicitly reject class arbitrations in their arbitration agreements.

Schwartz Lecturer Professor Chris Drahozal to Speak at Moritz on Thursday, March 28th

Following yesterday’s exciting oral argument in Sutter v. Oxford Health Plans (more on that later), I am pleased to announce that Ohio State’s 2013 Schwartz Lecture will be given by Professor Christopher Drahozal, from University of Kansas, on Thursday at noon in Saxbe Auditorium. Please join us if you are in Columbus! Chris’s very timely talk will focus on the Supreme Court arbitration cases as “error correction” cases. Chris’s description of his speech/article is as follows:

Supreme Court Justices from William Taft through Stephen Breyer have repeated the maxim that “[t]he Supreme Court is not a court of error correction.” When it comes to arbitration law, however, a number of the Court’s cases are exactly that ― factbound decisions that do little more than correct errors by lower courts. So what is it about arbitration law and the Federal Arbitration Act that results in error correction and factbound decision-making playing such a significant role in the Court’s decisions? One important factor is ongoing resistance to the Court’s arbitration decisions in the lower courts. But in addition, the generalist legal background of Supreme Court Justices (and their law clerks) leads them to overlook important nuances in the facts of arbitration cases before the Court on certiorari. The Court could take simple steps to avoid some of its more limited or problematic decisions. My paper will explore those steps.

Announcing the Publication of the first coursebook of its kind: Designing Systems and Processes for Managing Disputes

I am excited to bring you news of the imminent publication of Designing Systems and Processes for Managing Disputes, authored by Nancy H. Rogers, Robert C. Bordone, Frank E.A. Sander and Craig A. McEwen. The first coursebook in Dispute Systems Design is a terrific book that will provide a hands-on interdisciplinary approach to the field of dispute systems design. The text includes real-life case studies and a variety of problems and examples from four leaders in the dispute resolution and systems design fields. The book will come with a DVD of Endgame (a movie about the use of mediation to end apartheid in South Africa) and there will be video clips posted on the webpage for the book: http://www.aspenlawschool/books/managing_disputes/default.asp. Congratulations on the publication and I look forward to using it!

American Express v. Italian Colors Restaurant Oral Argument Report

I read with interest the transcript of today’s oral argument in the highly anticipated American Express v. Italian Colors Restaurant case, No. 12-133. As I suspected, though, following oral argument, it would seem unlikely that the Court will decide in the merchants’ favor. Instead, the likely outcome is that the Court will hold that merhcants in this case will have great difficulty showing, pre-arbitration, that bilateral arbitration, as opposed to a class process, precludes them from vindicating their statutory rights. While Justices Kagan and Ginsburg repeatedly identified problems with bilateral arbitration clauses that effectively preclude plaintiffs from financing their own litigation due to the costs of proceeding in arbitration, Justices Breyer, Scalia, Roberts and Kennedy’s questions all suggested that they would vote in favor of American Express. Justice Scalia emphasized that, for the first forty years the Sherman Antitrust Act was in place, no class actions could proceed and yet that was not viewed as problematic. Justice Kennedy suggested that one of the benefits of the arbitration is that a claimant could select an expert arbitrator, such as an antitrust professor, instruct him or her to keep costs down, and have an arbitration process that was cheaper than a class action in court. The Justices also expressed keen interest in the idea that the merchants in the litigation could band together and hire a single expert to prepare a report (which is what the merchants alleged would cost $300,000 per arbitration) that could be shared among all the plaintiffs thus reducing overall costs per plaintiff. While there might be confidentiality objections to that approach (it was unclear whether confidentiality agreements between American Express and the plaintiff merchants precluded this type of sharing), the Justices seemed enamored with finding ways to make the arbitration process more streamline and less expensive, thus avoiding having to rule that the process was simply too expensive to preclude the plaintiffs from vindicating their statutory rights. Rather than focus on the benefits or drawbacks of class arbitration or the need for a class process, the Justices focused instead on ways to ensure that the arbitration process would proceed at a reasonable cost to the prospective claimants. Justice Breyer seemed concerned about courts getting into the business of analyzing the costs of arbitration on a case-by-case basis, noting that it would be “an odd doctrine that just says, plaintiff by plaintiff, you an ignore an arbitration clause if you can get a case that’s expensive enough.” Ultimately, I believe, based on the oral arguments and in light of other recent Supreme Court holdings, that the Justices will emphasize that the claimants’ alleged costs are too speculative (i.e. arbitration would not be that expensive even in an antitrust case) and hold that plaintiffs do not need the ability to bring their claims in a judicial class action in order to vindicate their statutory rights under the Sherman Antitrust Act.

New Issue of Mayhew-Hite Report on Dispute Resolution and the Courts Available

The quarterly edition of the Moritz College of Law’s Mayhew-Hite Report on Dispute Resolution in the Courts, a joint publication of the Moritz Program on Dispute Resolution and the Ohio State Journal on Dispute Resolution, is available at: http://moritzlaw.osu.edu/epub/mayhew-hite/2012/12/381/

Highlights of this issue include a transcript of Ken Feinberg’s Lawrence Lecture, given at Moritz last fall, a report on the Sixth Annual Works-in-Progress Conference, also held at Moritz this past fall, an article on on doing justice in the face of mass disasters by John C.P. Goldberg, a summary of an article on mass disasters and dispute resolution and some new work by student dispute resolution authors. Hope you find it interesting!

Ohio Legislature Formalizes Collaborative Lawyering

The Ohio Senate yesterday ratified a bill related to the use of collaborative lawyering. The bill, which formalizes the procedure and mandates confidentiality for the process, is a positive step toward increasing the use of CL in resolving disputes throughout Ohio. A copy of the bill can be found here: http://www.legislature.state.oh.us/bills.cfm?ID=129_HB_461 The Ohio House must still reconcile its bill and the Senate bill, but things look very good for collaborative law in Ohio.

Adding By Subtracting? How Limited Scope Agreements for Dispute Resolution Representation Can Increase Access to Attorney Services, by Kristen M. Blankley

Professor Kristen Blankley, of the University of Nebraska College of Law, gave an informative talk about a little discussed device — limited scope representation. Here is Kristen’s abstract:

Given the complexities of the legal system, pro se litigants understandably have difficulties navigating the legal labyrinth, and empirical evidence confirms that unrepresented parties rarely prevail in litigation. In other words, pro se litigants often do not have true “access to justice.” One effort to increase access to justice for those otherwise unable to afford legal services has been in the area of unbundled legal services, or limited scope representation. Traditionally, providers of unbundled services have focused on litigation activities, such as document drafting and hearing representation. These actions, however, simply move a pro se litigant along in the process without ever helping those parties resolve the real issues facing them. This Article brings a new suggestion to the literature dealing with limited scope representation by urging counsel and clients to use unbundled services to settle cases – not prolong them. Through the use of effective client counseling, attorneys and clients should spend funds for limited scope representation on alternative dispute resolution services, including negotiation counseling, negotiation representation, collaborative law, cooperative law, mediation counseling, mediation representation, and arbitration representation. These types of services have the means to truly achieve client interests and solve disputes, thus making them the most economical choice for clients. Attorneys, court systems, and pro bono groups also benefit from the proposal by giving increased work to attorneys, lightening court dockets, and offering manageable pro bono opportunities.

Report from AALS Works-in-Progress/Ohio State Journal on Dispute Resolution Symposium

We just completed our annual Ohio State Journal on Dispute Resolution Annual Symposium, which this year also served as the AALS Sixth Annual Works-in-Progress Conference. I thought the conference was a great success! As Art mentioned, we had many wonderful presentations (some of which – our “new voices,” highlighting young scholars working in the dispute resolution field — will be published in the symposium issue of the Journal on Dispute Resolution). In the next week or so, we will try to bring you descriptions/abstracts of the speakers’ presentations. I am helped in this effort by the students in my Dispute Resolution Practices class, who attended the symposium. Our first presenter, from Texas Wesleyan, was Peter Reilly, whose topic was “Negotiating Chargers of Bribery Toward Increased Transparency, consistency, and Fairness in Pre-Trial Deal Making Under the Foreign Corrupt Practices Act.”
Peter began the discussion with a brief history of how the Foreign Corrupt Practices Act (FCPA) was enacted and the Congressional intent underlying its enactment. After explaining how it was born out of the post-Watergate flurry of increased regulation, Peter discussed how the FCPA was largely symbolic for its first 25 years of its existence, with very little enforcement by the Department of Justice or the Securities and Exchanges Commission. After the terrorist attacks of September 11, 2001, however, the Act became a priority to ensure that American companies were not involved in corrupt practices of any sort, preventing any possibility of American corporate involvement with terrorist cells.
Peter then focused on how the Department of Justice began the process of bringing charges against major U.S. companies for FCPA violations, which typically end either in a determination not to prosecute agreement or a settlement agreement for these violations. These agreements have become the norm, with trials over whether a company violated the FCPA becoming the rare exception. These agreements are typically very short and do not provide much guidance on why or why not the Department of Justice is prosecuting a certain company. Because of this lack of information, companies are left to guess what exactly the FCPA’s boundaries are and what conduct will result in a Department of Justice prosecution.
Peter discussed how these determinations of whether to prosecute are often made after negotiations between the company and the Department of Justice. He explained that companies are starting to implement different training and compliance programs for their employees, allowing the companies to claim innocence while shifting the blame to individual employees when FCPA violations occur. These employees earn top salaries, and after the company pays a fine to the Department of Justice for the FCPA violation, these employees are fired, but not without multi-million dollar severance packages. Peter questioned whether companies considered this process of bribery, followed by FCPA issues, and large employee severance payments and Department of Justice fines as simply a cost of doing business when companies enter new foreign markets.

Concepcion in New Jersey

From Ballard Spahr:

The U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), obligates courts to compel individual arbitration even where the plaintiff has proven that doing so would make it impossible to vindicate statutory rights, according to a non-precedential opinion issued August 22 by the U.S. Court of Appeals for the Third Circuit in Homa v. American Express Co.
The case is significant because it rejects the “vindication of rights” theory that consumer advocates argue is a limitation on the scope of Concepcion’s holding. Homa instituted a class action against American Express alleging violations of New Jersey’s Consumer Fraud Act. The New Jersey District Court dismissed Homa’s action and compelled him to submit his claims to individual arbitration.
Homa appealed and the Third Circuit reversed because the District Court had not made any findings of fact “as to the potential value of the New Jersey Consumer Fraud Act claims….”. The Third Circuit then remanded the matter to the District Court to determine whether the class arbitration waiver was unconscionable because “the claims at issue are of such low value as effectively to preclude relief if decided individually.”
Homa submitted to the court an extensive factual record, including Homa’s deposition, attorneys’ certifications, and a certification of a vice president of American Express, in an attempt to demonstrate that compelling individual arbitration would make it very difficult for Homa to effectively vindicate his statutory rights.
Thereafter, the Third Circuit issued a precedential opinion in Litman v. Cellco Partnership on August 24, 2011, holding that the Federal Arbitration Act (FAA) preempts New Jersey law refusing to enforce class action waivers in small dollar cases. The unanimous Litman decision held that the Third Circuit’s prior decision in Homa was abrogated by Concepcion because the New Jersey law on which Homa relied was preempted by the FAA. On August 30, 2011, based on the Third Circuit’s decision in Litman and notwithstanding Homa’s factual record, the District Court reinstated its order compelling individual arbitration of Homa’s claims.
On appeal, the Third Circuit affirmed the District Court’s Order. Acknowledging Homa’s factual record, the Third Circuit held that “[e]ven if Homa cannot effectively prosecute his claim in individual arbitration, that procedure is his only remedy, illusory or not…Though some persons might regard our result as unfair, 9 U.S.C. § 2 requires that we reach it. In this regard, we point out that when Congress makes a law the court must enforce the law as Congress has written it regardless of the court’s view of the law.” Homa, No. 11-3600 at 10.
The Third Circuit’s ruling conflicts with the Second Circuit’s decision in American Express Merchant’s Litigation, which held that a class action waiver in an arbitration agreement is unenforceable if it precludes the plaintiff from vindicating statutory rights in an individual arbitration. American Express filed a petition for certiorari with the U.S. Supreme Court on July 30, 2012. The Supreme Court will have an opportunity to resolve this conflict when it begins its new term in October. Several other petitions for certiorari currently pending before the Supreme Court also raise the vindication of rights issue, including Buffington v. SunTrust Banks, Inc., Hough v. Regions Financial Corp., and Missouri Title Loans, Inc. v. Brewer, which is scheduled for conference on September 24, 2012 (Ballard Spahr is counsel for Missouri Title Loans).

REMINDER: AALS Works-in-Progress Early Submission Date Approaching

As you head into the long holdiay weekend, please remember that proposals are now due for Works-in-Progress papers to be considered for publication in the Ohio State University Journal of Dispute Resolution. Here is the information about this year’s Works-in-Progress Conference and the opportunity to have your paper selected for publication in a special issue based on the conference. Those of us here at Ohio State hope you will join us for the conference!
The Association of American Law Schools’ Section on Dispute Resolution’s Sixth Annual Works-in-Progress Conference for scholars, professors, practitioners, and researchers involved in dispute resolution will be hosted by The Ohio State University Moritz College of Law on Nov. 9-10, 2012. The conference will be held in Columbus, Ohio — the state capital and an easily accessible and centrally located city with plenty of transportation, hotel, restaurant, and entertainment options for WIP Conference attendees.
The WIP Conference is an invaluable opportunity for scholars in the dispute resolution field to meet others from across the county who also are teaching and researching in dispute resolution. The WIP Conference is committed to enabling any interested alternative dispute resolution scholar to present on his or her topic, regardless of the subject or amount of research. The host of the conference, The Ohio State University Moritz College of Law, is home to one of the top ADR programs in the nation, as well as many prominent ADR faculty, such as professors Nancy Rogers, Joseph Stulberg, Sarah Cole, Ellen Deason, and Amy Cohen.
In addition to traditional works-in-progress presentations, faculty members may submit a well-developed proposal of approximately 1,000 words for a paper they would present at the conference. If selected for inclusion, these faculty members would submit a full draft of the paper before the conference, and junior faculty would be assigned an experienced faculty member in the field of ADR as a commenter at the conference. The revised, completed articles will be due in late January or early February (the exact date is not yet set) to begin the process for publication in the Ohio State Journal on Dispute Resolution, the official journal of the American Bar Association Section of Dispute Resolution and the most cited journal in the field.
Initial 1,000-word proposals should be submitted next week for consideration to WorksInProgressOSU@gmail.com. Authors will be notified of selection for inclusion by June 25. Faculty interested in speaking only should also email a brief description of their topics to this address. For further information, please feel free to contact Lindsay Nichols or Kristine Murphy at WorksInProgressOSU@gmail.com.

CFPB will begin study of consumer arbitration

It looks like the CFPB will begin its required study of consumer arbitration. From Ballard Spahr:

“The Consumer Financial Protection Bureau announced today that is has initiated its study of consumer arbitration as mandated by Section 1028 of the Dodd-Frank Act. It submitted to the Federal Register for publication a “request for Information Regarding Scope, Methods, and Data Sources for Conducting Study of Pre-Dispute Consumer Arbitration.” The CFPB described the request as “a preliminary step in undertaking the study.”
Section 1028 requires the CFPB to “conduct a study of, and to provide a report to Congress concerning, the use of agreements providing for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services.” Section 1028 goes on to provide that the CFPB “by regulation, may prohibit or impose conditions or limitations on the use of [such] an agreement” if the CFPB “finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers.”
The request asks the public to submit comments on or before June 23, 2012, on four main topics dealing with the scope, methodology, and data sources of the study:
• The prevalence of pre-dispute arbitration agreements in consumer financial services products (other than credit card agreements, on which the CFPB already has data)
• Claims brought by consumers against financial services companies in arbitration
• Claims brought by financial services companies against consumers in arbitration
• The impact of pre-dispute arbitration agreements on consumers outside particular arbitral proceedings
For guidance, the request poses a series of specific questions within each topic. The CFPB may consider soliciting further feedback based upon the information it receives in response to these questions.”