All posts published on 'September, 2014' — Arbitration & Mediation Updates
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From the monthly archives: September, 2014

We are pleased to present below all posts archived in 'September, 2014'. If you still can't find what you are looking for, try using the search box.

Southern District of Texas: Arbitration provision in job applicant's suit wasn't procedurally unconscionable

In Fernandes v. Dillard's, Inc., the United States District Court for the Southern District of Texas (Houston Division) held that an arbitration provision above the job applicant's signature, wasn't procedurally unconscionable. An arbitration agreement in a job application, even when the person isn't hired, is enforceable, according to the court. While the applicant also argued that the arbitration agreement wasn't supported by consideration, the court held that the mutual promises to resolve disputes by arbitration constituted sufficient consideration. The court concluded that the job applicant failed to provide evidence that the arbitration agreement was procured through "fraud, misrepresentations, or deceit" and the agreement, therefore, wasn't procedurally unconscionable. Link here.

14th Court of Appeals: Law firm did not owe duty to disclose implications of arbitration provision in a retainer agreement

In Greenberg Traurig, LLP v. National American Insurance Co. et al., the court of appeals was presented with the question of whether a law firm had a duty to disclose the nature and existence of an arbitration clause in a retainer agreement with its client. The court held that the law firm did not have a duty to disclose the arbitration provision in a retainer agreement. The court also held that an insured client was bound by the arbitration provision between the law firm and the insurance company under the doctrine of direct benefits estoppel. Link here.

14th Court of Appeals: trial court did not render judgment contrary to mediated settlement agreement

In Scruggs v. Linn, the Fourteenth Court of Appeals was asked to determine whether the trial court erred when it entered a judgment, including an award of amicus attorney's fees, when the partial mediated settlement agreement did not address that issue. The court of appeals remanded the matter back to the trial court for a determination of whether the amicus attorney fee's award is in compliance with the parties' mediated settlement agreement. Link here.

Texas Supreme Court: Analysis of Unconscionability of an Arbitration Agreement

In Venture Cotton Co-op v. Freemen, the Texas Supreme Court overturned the court of appeals' decision that an arbitration provision was unconscionable, remanding the matter back to the court of appeals. The Supreme Court's decision provides an outline of the defense of unconscionability when analyzing an arbitration provision. Link here.

Blog: Trade Secret Mediation

Erica Bristol, a mediator and principal at EB Resolution Services, recently guest blogged at Seyfarth Shaw's blog on "Trade Secret Mediation: Advice from a Mediator's Perspective." Link here.

5th Circuit: Co-Defendant's actions, even if related, can't be attributed to another defendant for determining whether right to arbitrate was waived.

In Al Rushaid et al. v. National Oilwell Varco, Inc. et al., the trial court denied a defendant's motion to arbitrate, finding that the defendant substantially invoked the judicial process to the prejudice of the plaintiffs. The Fifth Circuit Court of Appeals vacated the trial court's order and remanded the proceed back to the trial court. Finding that there was an agreement to arbitrate, the Fifth Circuit Court of Appeals held that the acts of a party's codefendants in engaging the judicial process werenot attributable to the party who sought arbitration. The opinion discusses legal principles outlining when the actions of an arbitration proponent's codefendants may be imputed to that proponent. Link here.

New AAA Consumer Arbitration Rules

According to Buckley Sandler, LLP (through Lexology), the American Arbitration Association's new consumer rules went into effect on September 1, 2014. The article is located here. The rules consumer rules are located here.

Texas: 3rd Court of Appeals holds that by ruling on summary judgment motion, court implicitly withdrew order to mediation.

In Davis v. American Express Bank, a collection case, the trial court ordered the parties to mediation. Seven months after the order to mediate, the bank moved for summary judgment. The trial court granted the bank's motion. Davis argued that the trial court didn't have "jurisdiction" to hear the summary judgment motion because of the interlocutory mediation order. The Austin Court of Appeals held that a trial court has control over its orders and by ruling on the summary judgment motion, the trial court implicitly withdrew its mediation order. Link here.

Article: The Mediation Privilege

Milko A. Kumar, from the law faculty at the University of Sydney, wrote about the mediation privilege in the Australian Alternative Dispute Resolution Bulletin. The article explores the privilege and a recent recommendation by the National Alternative Dispute Resolution Advisory Council that would give a court authority to admit mediation communications. Link here

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