Friday, June 30, 2017

Summary Judgment in Arbitration

Arbitration has become formal of late and has been criticized by scholars as costly, time-consuming and subject to hardball advocacy. See Stipanowich, Arbitration: The “New Litigation” University of Illinois Law Review Vol. 2010, No. 1. This trend is not surprising given that career litigators, having been trained in the techniques of discovery and motion practice, are hesitant stepping outside their comfort zone. See JAMS Dispositive Motions in Arbitration, Kleinberg, Summer 2015. This includes the increasing filing of Motions for Summary Judgment, mostly following rule changes in 2013 by AAA allowing them. Winning a dispositive motion in any forum is difficult. For example, statistical analyses of federal courts in three large districts showed that summary judgments are granted less than 10% of the time. See Id. While arbitrators have the authority to consider motions for summary disposition, arbitrators must take great care in exercising this power. Avoiding increasing the costs of the proceedings and/or delaying its conclusion must be paramount. How sound is the motion and what is its likelihood of success? Are there issues of fact that would preclude ruling in favor of the motion? Will the motion, if granted, really reduce costs and expedite the arbitration, or will it lead to just the opposite result? In many cases, striking a few claims or defenses of several asserted would not serve to abbreviate the proceedings. Consideration of a motion not likely to succeed will waste time and money. The cost and dilatory impact of court-style motion practice, where the making of dispositive motions is the norm, is precisely what arbitration should avoid. See Reflections on the Use of Dispositive Motions in Arbitration By Edna Sussman and Solomon Ebere, NYSBA New York Dispute Resolution Lawyer, Spring 2011, Vol. 4, No. 1. Such motions can only be considered if facts upon which the dispositive motion is made are not in dispute. Granting dispositive motions could be viewed as depriving parties of a fair proceeding. Arbitrators must also ensure that they have carefully considered any discovery requests by the opposing party. If a party is denied requested discovery that is material to the motion and could alter the result, there would likely be a finding that the party was denied its right to a fundamentally fair proceeding. See Id. As an arbitrator, I am not against streamlining a case-- just be careful in considering the potential challenges to final awards that defeat the purpose of an efficient process with finality.

Monday, June 19, 2017

NLRB Invalidates UBER Arbitration Agreements

Last week, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) ruled an Uber Technologies arbitration agreement was unlawful. Uber was requiring its software engineers to sign an agreement that compelled arbitration of claims against the company. The ALJ found language in the agreement ambiguous as to employee rights to file charges with the NLRB, even though a provision in the agreement explicitly stated those interested in filing administrative charges could do so at the website. Uber was ordered to rescind or revise its policy to more clearly state how employees can access NLRB processes. Uber is considering appealing the decision to the full NLRB, but has not yet done so. The U.S. Supreme Court is also currently considering a case in which employers are challenging the NLRB’s view that class action waivers in compulsory employment arbitration pacts violate the National Labor Relations Act (NLRA). Given this scrutiny, companies using or considering an arbitration program to resolve workplace disputes with employees should take care when drafting and implementing the agreements to account for recent NLRB decisions and guidance. Evidently, failure to do so may result in the program being partially or wholly invalidated. See more here-- and

Saturday, June 10, 2017

CMS Reversing Arbitration Ban

The Centers for Medicare & Medicaid Services (CMS) published a final rule for nursing homes just before last fall's election that included a provision prohibiting facilities from requiring pre-dispute binding arbitration to settle disputes over resident care. The final rule, which went into effect November 28, 2016 for facilities participating in the Medicare or Medicaid programs, was seen as a prohibition on regular practice in long-term care facilities of using resident agreement arbitration clauses upon admission. CMS just announced its intention to remove the ban on pre-dispute arbitration agreements. The rule, released after the agency abandoned its appeal in a lawsuit over the matter, would allow arbitration agreements that meet certain standards. For example, such documents would need to be written in plain language, be thoroughly explained to residents and their representatives, and be understood. A party in such agreement waives the rights to sue and to a trial by jury, to participate in a class action lawsuit, or to receive any type of judicial review apart from the very limited grounds applicable to setting aside arbitration decisions. The American Bar Association (ABA) previously commented that in many circumstances arbitration can be advantageous, and residents should continue to have the choice to use it to resolve disputes. Many recent court decisions, including the latest, Kindred v. Clark out of SCOTUS have upheld enforcing such agreements. See more here-- and and