New Report Comparing Arbitration and Litigation in Employment Disputes Sparks Backlash

By Andrew Garcia

In May, the U.S. Chamber of Commerce affiliate, the Institute for Legal Reform, released a report praising the results of arbitration in encouraging settlement, providing more wins for employees, higher awards, and faster outcomes versus litigation in employment disputes.

The Chamber’s report, “Fairer, Faster, Better: An Empirical Assessment of Employment Arbitration,” authored by Nam D. Pham and Mary Donovan, researchers at Washington, D.C., consulting firm NDP Analytics, seemed awash in good news.

It was based on a five-year review between 2014 and 2018 of 10,000 employment arbitrations with data from arbitration providers American Arbitration Association and JAMS. The report compared the arbitrations with more than 90,000 employment lawsuits in federal courts between 2014-2018. It found that employees were three times more likely to prevail in arbitration than in litigation, arbitrations lasted on average 96 days shorter than litigated cases, and the average amount awarded was almost twice as much in employment arbitration, at more than $520,000,  compared to litigation.

Twitter erupted. Critics slammed the report saying that it ignored key data, failed to account for cases cut off by compulsory alternative dispute resolution processes, and flat-out cooked the awards data conclusions by using the mean to skew the size of awards, rather than the median.

More significantly, labor forces moved to debunk the Chamber’s  report saying it was designed for a May Congressional hearing, Justice Denied: Forced Arbitration and the Erosion of our Legal System, where it was the crux of the Chamber’s pro-arbitration argument.

A principle criticism is the report doesn’t cite the contrary significant data that emerged over the past decade from the Economic Policy Institute, a Washington, D.C., nonprofit that researches economic data from low- and middle-income workers’ perspective. The 2015 EPI report criticized arbitration as a litigation alternative in employment cases.

That December 2015 EPI report, “The Arbitration Epidemic,” authored by UCLA School of Law Prof. Katherine Stone, and Alexander Colvin, who is dean and the Martin F. Scheinman Professor of Conflict Resolution at Cornell University’s ILR School, argued that employees who are contractually bound to arbitrate disputes are less likely to receive favorable outcomes or substantial awards compared to employees that initiate disputes through litigation.

Stone and Colvin compared two separate studies that examined outcomes in arbitration and litigation actions, An Empirical Study of Employment Arbitration: Case Outcomes and Processes (2011), and Arbitration and Litigation of Employment Claims: An Empirical Comparison (2003).  They found that employee arbitration win rates were 59% as often as in federal court actions, and 38% as often in state court actions.

A subsequent 2015 study on employment litigations indicated that the employee win rates in federal court cases lowered to an average of 29.7%, while another 2015 study on employment arbitrations found that employee win rates in arbitrations also lowered to an average of 19.1%. The EPI report commented that even though the outcome gap narrowed in 2015 compared to the 59% gap in 2011, the employee win rate in arbitration was still 35.7% lower than in federal court actions.

A subsequent 2018 report by Alexander Colvin found that only one in 10,400 employees subject to arbitration files a claim, which is a rate 35 to 80 times less than employees who file claims in federal and state courts.

So the new Chamber Institute for Legal Reform report served to reignite fights that have taken place over the past decade in courts and legislatures over employment and consumer arbitration. Yet despite the recurring arguments, there may be middle ground. Myriam Gilles, a professor at Cardozo School of Law in New York,  stated in her testimony at the May Congressional hearing that advocates opposed to mandatory arbitration are not arguing that arbitration be banned altogether, but that mandatory arbitration in a consumer or employment context that bars class actions is unworkable.

In addition, the Stone and Colvin report offers an in-house ADR solution that companies can adopt. The report cites that the former TRW Inc. in the 1990s adopted successful internal dispute resolution procedures that included local management complaint procedures, peer review panels, and then mediation. A 2004 study by Colvin found that only 72 TRW cases even reached mediation over the first three years of the program, and only three of the cases reached arbitration. In addition, TRW set up the process to be binding on the company but not on the employee, who would then be able to go to court after arbitration if the employee was not pleased with the outcome.

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The author, a Summer 2019 CPR Institute intern, is a law student at Brooklyn Law School.

 

Update: ADR Breakfast on New York State’s Presumptive Mediation Implementation

By Savannah Billingham-Hemminger

An official of the New York state court system introduced new efforts on boosting the use of alternative dispute resolution, and especially mediation, at a regular gathering of practitioners last week.

Lisa Denig, Special Counsel for ADR Initiatives for the NY State Office of Court Administration, spoke about the moves, characterized by what the state is calling “presumptive ADR,” at the monthly New York City John Jay College of Criminal Justice ADR Breakfast on July 11.

In attendance were attorneys, neutrals, and representatives of organizations who are interested in how the ADR steps, part of New York State Chief Judge Janet DiFiore’s Excellence Initiative, would affect their practices. The effort will push litigants to using ADR in an effort to expedite and improve the quality of outcomes in the state court system.

Full details on the presumptive ADR and mediation efforts are in the new issue of Alternatives to the High Cost of Litigation, at “‘Presumptive Mediation’: New York Moves to Improve Its Court ADR Game,” 37 Alternatives 107 (available at http://bit.ly/2GbCWdK).

Denig opened the briefing with background on the effort. Earlier this year, Chief Judge DiFiore introduced the idea as a way to reduce court backlogs. While many pilot programs had already been conducted, the move is designed to ensure full participation and cement ADR as an option—as well as a focus—in all state courts.

While many perceive the efforts as a mediation-based program, it is officially termed “Presumptive ADR” because not every court will focus on mediation. Courts in the state’s 13 judicial districts are being given freedom to adopt programs in accordance with local demand. The districts are making ADR plans based upon their typical cases, and matching that with the ADR methods that work best for these cases.

The plans, which are being drafted by the administrative judge of each judicial district, are due to be submitted by Sept. 1. Denig said that the hope is that implementation will roll out by the end of the year. There are certain types of civil cases that are not conducive to ADR methods, but she assured the audience that presumptions will not change, but rather, the ADR approach will be adjusted.

The culture shift in New York state courts’ approach to cases has already brought up some challenges. Denig noted the biggest issues to be addressed included language diversity of neutrals; power imbalances in mediation; opt-out provisions for certain cases, and neutrals’ compensation.

She stated that these challenges are being worked out this summer. The administrative judges are looking at other states as models in addressing these issues, formulating their plans and developing their local rules. There will be statewide and local rules for the initiative, and they are being developed on parallel tracks.

The breakfast audience brought up many scenarios that members currently face in their ADR practices. The biggest concern—not surprising in a gathering that is often heavily attended by neutrals–is the state’s hiring process, requirements, and neutral compensation.

The answer to the questions was: Stay tuned.  Lisa Denig listened to the concerns, and assured the group that once the plans roll out in September, the presumptive ADR path will be much clearer.

The New York state court system’s May 14 announcement on the presumptive ADR moves is available at http://bit.ly/32lhjkq.

 

The author, a Summer 2019 CPR Intern, is a law student at Pepperdine University School of Law in Malibu, Calif.

 

 

 

Experiences & Impact from CPR’s 2019 International Mediation Competition

By Ibrahim Godofa (A member of the University of Nairobi Team)

The 2019 CPR International Mediation Competition has definitely been one of the key opportunities that I have been lucky enough to participate in this year and arguably for the entirety of my law school period. I believe it was an incredible opportunity for my teammates as well.

My attention was first drawn to this competition on LinkedIn where the poster was shared by Mr. Olivier André from the CPR Institute. I immediately shared the information with like-minded colleagues at the university and a team was formed, whereupon we applied for participation as well as a partial scholarship that had just been instituted to aid disadvantaged teams. Upon assessment, we were selected alongside 17 other teams from across the globe as the only team from the African continent. Additionally, we were granted the partial scholarship to participate!

“The role all of these takeaways will play in enhancing the position of mediation in Kenya, especially among our fellow students, cannot be underestimated.”

The competition period that took place between the 4th and 6th of April in São Paulo, Brazil was probably the most intensive and beneficial learning opportunity throughout the process. Coming from a jurisdiction where mediation is still a progress in motion, the first evening of the training session, featuring short lectures about the various emerging aspects of mediation, was an incredible way to start a learning curve that would last for the following two days. It was quite an eye-opening kick-off and equally interesting to be introduced to emerging technologies as well as business aspects, such as agricultural ones, in the practice of mediation. While this training session served as an effective way to expand the participants’ views on the evolving practice of mediation, we also found it to be a helpful approach to preparing for the actual competition, whose themes revolved around these emerging aspects.

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The Nairobi team, receiving their award for best teamwork. The author, Ibrahim Godofa, is pictured on the right, along with his teammates Edgar Usagi Alema (left) and Sumaiyah Abdi Omar (center).

The first day of the competition provided many different kinds of lessons, as my team and I got the chance to go up against excellent teams from world class universities all around the world. My team had the rare chance to go up against teams from three different continents: South America, Asia and North America on this first day. It was quite an awesome experience trying out our preparation against teams that had different approaches and internal qualification processes to get to this stage of the competition, and some of which even had coaches, unlike my team. It was also an interesting experience to compete in the style in which the competition was set up—which was new to me, and (as I learned from speaking to them) to several of the other participants as well.

Additionally, as a team we had always known mediation to be a conflict resolution process that is not bent towards a win-lose outcome. While retaining the important values of a mediation, this competition allowed us to simultaneously act upon the rush of competitiveness coming from all the teams while maintaining a respectful and professional sportsmanship, which was one of the highlights of this phase of the competition observable from all the teams present.

The first day of the competition culminated quite memorably for us, with an announcement that our negotiating team was through to the quarter finals the following day. Being part of our negotiating team, this presented serious excitement for me and also meant continued work within the limited time we had to prepare for the quarter finals round. The quality of the competition in this round was even a notch higher than the previous day’s, and so were the stakes. However, my team would learn later in the day that our impressive run would end at this round, albeit against a worthy opponent, the Harvard Law School team.

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The team from the University of Nairobi, School of Law, taking a well-deserved break

Outside the competition rooms, there was an extended opportunity to interact and network with current and future voices in global mediation. This ranged from top-of-their-class students from the various participating universities as well as other professionals who were present in different capacities as judges, coaches and other volunteers. Interacting with these individuals and exchanging contacts provided an invaluable door to long-lasting partnerships and collaborations that are particularly priceless coming from a jurisdiction such as ours, where borrowing from global best practices brings a special kind of difference in an under-developed field such as mediation.

At the end of the competition, my team was recognized with the “Best Teamwork” Award, upon the completion and compilation of feedback from the excellent judging panels that we came across in the various rounds. This feedback from the judges, which continued to come to our attention even after the competition was long finished, has been a very important part of the competition’s learning process and my team is incredibly proud to have emerged with an award testament to the positive and constructive feedback that the judges had on our performance.

One of the main attractions of this competition to our team lay in the impact that the experience would have on mediation back in our circles at home, both in general and at our school in particular. The lessons taken home by our team from this experience are numerous. Some of the key takeaways from the wholesome experience of the competition include:

  • Best practices from other universities as far as student activities centered around mediation is concerned in their schools, especially for the universities from the United States
  • Valuable feedback from the judging panel, some of which contain long-term lessons for our future practices
  • And, most importantly, a model mediation practice procedure that can be employed to sharpen the skills of eager students back at our school through student-led trainings

It is important to also note that our team’s participation in this edition of the competition was the first of its kind at our school as far as any international Alternative Dispute Resolution competitions are concerned. Our participation has therefore paved way for other students to look for and take up similar opportunities, and to benefit from the connections that our team acquired internationally which can be leveraged to create a ripple of opportunities to others who will come after us. The role all of these takeaways will play in enhancing the position of mediation in Kenya, especially among our fellow students, cannot be underestimated. With all signs indicating the rise of mediation practice around the world, we are certainly committed to advancing this important dispute resolution resource within our immediate circle of friends and fellow students, starting from our school. And a big thank you goes to the CPR Institute for the invaluable role that it continues to play in driving a global mediation culture.

Our team’s appreciations go to Olivier André, the amazing Chris Silva and Franco Gevaerd from the CPR Institute, all of whom played a key role in making our experience of this competition, alongside their other colleagues, so memorable.

And oh! Brazil was an awesome place and the Paulistas were very friendly and welcoming residents of a great city! We had a wonderful time.

 

NJ’s Top Court Backs Arbitration in Car Sales Fraud Cases

By Brian Chihera

In Janell Goffe v. Foulke Management Corp (A-3/4-18/081258 ) (N.J. S.Ct.  June 5) (available at http://bit.ly/2X8njco), a unanimous N.J. Supreme court recently stated that two sales fraud claims against auto dealers must be decided through arbitration.

The Court followed longstanding U.S. Supreme Court law in holding that the plaintiffs’ challenges to their sales agreements were attacks on the contract formation, but not on the language used in the agreements to arbitrate.

Justice Jaynee LaVecchia wrote for the 7-0 Court, “Those rulings do not permit threshold issues about overall contract validity to be resolved by the courts when the arbitration agreement itself is not specifically challenged.”

The plaintiffs, who were customers of two Cherry Hill, N.J., auto dealerships, challenged the sales agreements they had entered into because they claimed that the contracts were concluded through fraud—at least one of which appeared to be a bait-and-switch scheme.

Previously, New Jersey’s top Court in Atalese v. U.S. Legal Servs. Grp., L.P., 99 A.3d 306, 311 (N.J. 2014) (available at http://bit.ly/2NpTG6W), cert. denied, 135 S. Ct. 2804 (2015), backed a plaintiffs’ challenge to an arbitration agreement because “ the wording of the service agreement did not clearly and unambiguously signal to plaintiff that she was surrendering her right to pursue her statutory claims in court.”

But the Goffe court found that the challenge was to the overall contract’s formation, not the arbitration agreement.

The first plaintiff, Janell Goffe, had gone to Cherry Hill Mitsubishi, where she was told that she could get a Buick for a trade-in.  She paid $250 the same day and then would pay $750 two weeks later. Goffe was also told that the financing had been approved.  She then signed the sales contract, which included an arbitration clause.

After a few days, however, she was told that the financing had been declined and had she had to make a larger down payment and higher monthly payments, but she opted to return the Buick to the dealership, canceling the deal.

Sasha Robinson, the second plaintiff, asked about buying a car with Mall Chevrolet, and was told that she would have two days to change her mind about the purchase. She signed the contract, including the arbitration clause, the same day. When she tried to return the car to the dealership, Robinson was told that there was a mistake and she was bound by the contract, which meant that the matter would be taken for arbitration.

Goffe did not involve any challenge to the arbitration clause nor the language that was used in it. The plaintiffs alleged that they had been made to sign the contracts through fraudulent means, which constitutes challenges to the entirety of the contracts. They wanted the courts to nullify the contracts because they alleged fraud was committed.

In reaching its decision, the N.J. Supreme Court looked at how the U.S. Supreme Court had dealt with such issues. “The United States Supreme Court has held that when a plaintiff raises a claim of fraud in the inducement of a contract as a whole–rather than fraud in the making of the arbitration agreement itself–the Federal Arbitration Act requires that the dispute be resolved by the arbitrator,” stated Justice LaVecchia in the opinion, citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967).

She concluded, “based on the complaint and the certifications provided to the trial court, it is apparent to us that the parties’ claims are subject to an enforceable arbitration agreement. Therefore, the arbitration agreement is severable and enforceable. Plaintiffs must arbitrate their claims. Before the arbitrator, plaintiffs can raise any arbitrability issues consistent with the delegation clauses in these agreements.”

The Court reversed its Appellate Division, reinstating the trial courts’ orders to compel.

 

The author, a CPR Institute Summer 2019 intern, graduated in May with an LLM in dispute resolution from the University of Missouri School of Law in Columbia, Mo.

US Sup Ct Grants Review to Decide Whether New York Convention Permits Non-Signatory to Compel International Arbitration on Equitable Estoppel Grounds

By Mark Kantor

Kantor Photo (8-2012)

This morning the U.S. Supreme Court granted certiorari and agreed to hear in its next Term the international arbitration case of GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC (Docket No. 18-1048, case documents available at https://www.scotusblog.com/case-files/cases/ge-energy-power-conversion-france-sas-v-outokumpu-stainless-usa-llc/).  The dispute addresses whether, under the New York Convention, a non-signatory can compel arbitration.  The Question Presented is:

Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.

As described in GE’s petition for cert, “Sometimes, a signatory to a contract may sue a non-signatory for claims that arise out of the contract.  When that happens, is the signatory bound by the arbitration clause it agreed to in the contract?  For domestic arbitration agreements, the answer is yes: Equitable estoppel allows the non-signatory to enforce the arbitration clause.  But the Eleventh Circuit [Court of Appeals] held that a non-signatory cannot compel arbitration if one of the parties is a foreign entity.  That erroneous holding deepens a 2-to-2 circuit split and warrants this Court’s review.”

Readers will note that GE’s quoted description of the issue speaks confusingly about both (i) a signatory compelling arbitration with a non-signatory and (ii) a non-signatory compelling arbitration with a signatory.  One hopes the U.S. Supreme Court will be able to distinguish the two situations and determine whether that distinction is relevant to resolving the question.  The 11th Circuit decision declining to compel arbitration rested in part on the non-US nature of one of the parties.

We shall learn within the next year how the U.S. Supreme Court believes non-signatories fit into the commercial arbitration universe.

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Mark Kantor is a CPR Distinguished Neutral. Until he retired from Milbank, Tweed, Hadley & McCloy, Mark was a partner in the Corporate and Project Finance Groups of the Firm. He currently serves as an arbitrator and mediator. He teaches as an Adjunct Professor at the Georgetown University Law Center (Recipient, Fahy Award for Outstanding Adjunct Professor). Additionally, Mr. Kantor is Editor-in-Chief of the online journal Transnational Dispute Management.

This material was first published on OGEMID, the Oil Gas Energy Mining Infrastructure and Investment Disputes discussion group sponsored by the on-line journal Transnational Dispute Management (TDM, at https://www.transnational-dispute-management.com/), and is republished with consent.

Faulty Procedure? Fifth Circuit Vacates an Arbitration Order for Unconscionability Inquiry

By Savannah Billingham-Hemminger

The Fifth U.S. Circuit Court of Appeals has reversed, vacated and remanded an order to compel arbitration in an age discrimination case so that the federal district court can re-examine the merits of a procedural unconscionability claim.

The circuit judges in Bowles v. OneMain Fin. Grp. LLC, No. 18-60749, 2019 U.S. App. LEXIS 18414 (June 19) (available at http://bit.ly/2KBXcJf) found that the district court had erroneously referred a procedural unconscionability challenge to an arbitrator after determining that such a claim was about the enforceability of the arbitration agreement.

Senior Circuit Judge E. Grady Jolly, writing for a unanimous three-judge panel, determined that procedural unconscionability instead goes toward contract formation, not contract enforcement, under Mississippi law. Contract formation issues are to be decided by the court, while contract enforcement is to be decided by the arbitrator.

According to the case, plaintiff Cathy Bowles worked for lender OneMain Financial Group for nearly 20 years when she was terminated for “allegedly inappropriate interactions with employees under her supervision.” During her time there, she was required to “review and acknowledge” the Employee Dispute Resolution Program/Agreement on multiple occasions.

After her termination, she filed a complaint with the U.S. Equal Employment Opportunity Commission, which was unsuccessful, and then filed a federal court suit under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964. OneMain responded with a motion to compel arbitration under the Federal Arbitration Act and pursuant to a 2016 Arbitration Agreement that Bowles had acknowledged electronically.

Bowles objected to arbitration on two grounds: that there was no “meeting of the minds” resulting in mutual assent for contract formation, and that OneMain obtained consent through misrepresentation, which was procedurally unconscionable.

The district court granted the motion to compel, finding that the necessary meeting of the minds for contract formation was met under Mississippi law. Whether Bowles did or did not understand was irrelevant because lack of diligence before her acknowledgment does not impede formation of the contract.

On the second ground, the district court ruled against her as well. “The district court found that Bowles’s procedural unconscionability challenge went to the enforceability rather than the formation of the Arbitration Agreement and therefore referred it to the arbitrator for decision, in accordance with the Arbitration Agreement’s delegation clause.”

But the federal appellate court disagreed with the trial court on the second point.  It reviewed OneMain’s motion to compel arbitration de novo. The opinion noted that in determining the validity of an arbitration agreement, state-law principles should ordinarily apply to the formation of contracts, citing First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

The panel opinion found that the district court correctly concluded that mutual assent existed because on multiple occasions the Arbitration Agreement was communicated clearly to Bowles, and she acknowledged receipt.

But citing West v. West, 891 So. 2d 203 (Miss. 2013), the panel opinion said that in Mississippi, procedural unconscionability is a claim on the formation of the contract—”it is pellucid that ‘[p]rocedural unconscionability goes to the formation of the contract.’” In such a case, the court has a duty to resolve the challenge.

The opinion examines unconscionability factors using another Fifth Circuit case, Begole v. N. Miss. Med. Ctr., 761 Fed. Appx. 248 (2019). In a footnote, the court explained that general allegations of unconscionability going to the formation of the entire contract is an issue for the arbitrator. But in challenging the specific decision to agree to arbitrate as unconscionable, the district court must weigh in.

The opinion repeats Begole’s specific distinctions “between procedural and substantive unconscionability under Mississippi law:

Under substantive unconscionability, we look within the four corners of an agreement in order to discover any abuses relating to the specific terms which violate the expectations of, or cause gross disparity between, the contracting parties. Procedural unconscionability may be proved by showing a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms.”

Because the trial court needs to determine the procedural unconscionability claim on the merits, the Fifth Circuit panel reversed and remanded.

The author, a Summer 2019 CPR Intern, is a law student at Pepperdine University School of Law in Malibu, Calif.

 

Committee Q&A: A Conversation with the Co-Chairs of CPR’s Environmental Committee

We sat down recently with the Co-Chairs of CPR’s Environmental Committee, Steven Antunes of AEGIS Insurance Services, Inc. and John Bickerman of Bickerman Dispute Resolution, PLLC, to learn more about what this dynamic committee has been up to and has planned for the future.

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The Environmental Committee focuses generally on promoting the use of ADR in the environmental context and identifying best practices for mediation and arbitration in this highly technical area of the law. What are some of the specific issues that the Committee has focused on recently, and how?

John Bickerman: As working effectively with the government is almost always a critical component of environmental matters, the Committee organized a presentation on “Best Practices for Resolving Government Disputes” in Washington, D.C. in April 2018, featuring senior jurists from the EPA’s Environmental Appeals Board and directors of the dispute resolution divisions of FERC and the DOI.  Every agency has its own dispute resolution program. In the future, we intend to engage other agencies and have meetings outside of Washington, DC.  For example, we are considering holding meetings in the cities where EPA has regional offices because much of the interaction that the business community may have will come through the regional offices.

Steven Antunes: And just last month, we hosted a lunch time webinar on Ash Pond featuring Vivek Chopra of Perkins Coie and Kieran J. Purcell, Environmental Division Director of Rimkus Consulting Group, Inc. A recording of this webinar is available, for CPR members only, on CPR’s website HERE (members must be logged in to access). The Committee provided a primer on the functionality of an ash pond and its potential environmental affects and how ADR is utilized in resolving legal conflicts arising there from.

Can you give us a preview of some of the important environmental issues the Committee will be focusing on next?

Steven Antunes: The re-emergence of asbestos litigation has become an issue. The Committee will offer a comprehensive webinar in December 2019 regarding the role ADR plays in resolving asbestos-related matters.  The Committee is also putting together a session on how ADR should/could resolve potential environmental issues arising out of a Green New Deal scenario.

John Bickerman: One of the very significant challenges industry faces is the shifting regulatory and enforcement regimes of different Administrations. How much does the mission of an environmental agency change with each new Administration and how do companies plan and manage their environmental programs?

What have you both personally gotten out of participating in CPR’s committee structure, and what would you say to busy CPR members about why they should become more involved?

John Bickerman: Committee work gives a member the opportunity to immerse oneself more fully in specific areas of interest. Through committee work, a member can meet and develop meaningful relationships with colleagues who have shared interests. And, as a full-time neutral, CPR programs have provided an opportunity to understand better the thinking and approach of key corporate decision makers on how they approach resolving disputes.  And, it has also given prospective clients an opportunity to meet me and understand how I do my job.

Steven Antunes: My company is a longstanding CPR member and advocate of ADR so, I acknowledge that there may be a bias in my experience but every time I leave a CPR event, including Environmental Committee meetings, I walk away having learned something that will assist me in reaching an acceptable resolution to a matter. Committee members can be involved to whatever extent works for them. One can choose to formally participate and volunteer for projects, such as creating the resources that committees often collaboratively author. The opportunity to assume leadership roles on the CPR Committees exists or one can just take advantage of the events, which are an exclusive benefit of CPR membership. These events alone provide incredibly rewarding educational and networking experiences and truly should not be missed. They are also a great way to explore various committees one might be interested in before formally joining. The exchange of ideas and experiences that takes place during CPR events is invaluable. I challenge anyone to find an organization that offers its membership comparable access to business, corporate and legal talent.

Why would you encourage people to join the Environmental Committee?  

John Bickerman: Environmental issues will always be at the forefront of public policy and draw great public attention. The committee provides an opportunity to learn about these issues and be better prepared for the future impacts environmental policies will have on the business community.

Steven Antunes:  First of all, there can never be too much talent or knowledge associated with a given topic. If your practice involves any type of environmental issue, this CPR value added opportunity will only enhance your ability to successfully navigate the process of resolving environmental issues without the high costs and drawn out litigation process. This Committee offers first class interaction between/among some of the best in the environmental business.

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CPR committees are always looking to increase membership and participation, and there are no extra fees or costs associated with joining. Learn more about CPR’s other industry and subject matter committees here. To become a committee member, log in and join the committee(s) of your choice or email a note of interest to Richard Murphy at rmurphy@cpradr.org.

Take your seat at the table, along with
other thought leaders in your industry.

JOIN A CPR COMMITTEE TODAY

 

 

Was It Really a Foreign Arbitral Award? Ninth Circuit Says No.

By Brian Chihera

The Ninth U.S. Court of Appeals has reversed a district court’s order which had treated an order made by a Philippines arbitrator as a foreign arbitral award.

The appeals court ruled on an unusual situation.  It found that the case had been settled, and there was no outstanding dispute to arbitrate by the time the arbitrator got the case, and therefore nothing for the federal district court to confirm.

In Castro v. Tri Marine Fish Co., No. 17-35703 (Feb. 27) (available at http://bit.ly/2Zwoa8x), the three-judge appellate panel said that the arbitration decision was not a decision at all and should not be enforced under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, best known as the New York Convention.

“We review foreign arbitral awards deferentially, but we do not blind ourselves to reality when presented with an order purporting to be one,” concluded Circuit Judge M. Margaret McKeown, writing for a unanimous Ninth Circuit panel. “To cloak its free-floating settlement agreement in the New York Convention’s favorable enforcement regime, Tri Marine asked an arbitrator to wave his wand and transform the settlement into an arbitral award. That is not sufficient to produce an award subject to the Convention.”

At the heart of the convention and related federal law, notes Circuit Judge McKeown, “is the principle insulating foreign arbitral awards from second-guessing by courts. But this appeal involves an even more fundamental question—whether we are presented with a foreign arbitral award at all. In the mine run of cases, the answer is uncontroversial: when it looks, swims, and quacks like an arbitral award, it typically is. Yet, in this unusual appeal, we have an arbitral award in name only. There was no dispute to arbitrate, as the parties had fully settled their claims before approaching an arbitrator.”

Michael Castro, a Philippines citizen, moved to American Samoa where he lived with his fiancé. Castro was employed by Tri Marine and worked in the company’s warehouse. He was offered a deck-hand position on a fishing vessel it owned, which he accepted.

The dispute between Castro and his employer started with an employment contract that was signed just before the fishing expedition launched. Both parties dispute the contents of what was signed. Castro said he believed that he was only signing a “a half sheet of paper with a few sentences on it” that designated the pay rate, and the employer contended that Castro signed an employment contract.

Castro, however, said that he signed the employment contract when he appeared before an arbitrator. The contract contained a clause which was applicable to all disputes or claims arising out of the employment on the vessel.

Castro injured his knee after falling down ship stairs two weeks into the trip, and immediately requested to be returned to American Samoa so he could travel to Hawaii for medical care. Tri Marine arranged for Castro to be treated in the Philippines, where he also underwent surgery for a torn anterior cruciate ligament and a torn meniscus. Castro also received physical therapy and his employer paid for the medical expenses and his monthly maintenance.

Castro approached Rhodylyn De Torres, a Tri Marine agent in the Philippines after his father had been diagnosed with kidney cancer. He negotiated a settlement of his disability claims in exchange for an advance of $5,000 to help pay for his father’s care. This was followed by an agreement in principle to release Castro’s claims in exchange for an additional $16,160.

Castro was accompanied by his fiancé when he went to see De Torres at her office to finalize the settlement. Castro was not aware of the fact that he was participating in an arbitration. Castro and De Torres both gave different versions of events of their meeting. Castro is not fluent in English and disputes that De Torres translated documents into Tagalog, the Philippine language. There was a dispute as to when the agreement was signed, although Castro did not dispute signing the agreement.

The settlement agreement signed between Castro and De Torres meant that he had released himself from any and all liability or claims. After the meeting on the release, Castro was told that he had to pick up the settlement receipt at the National Conciliation and Mediation Board, but in fact he was led to an arbitration.

Gregorio Biares was present as the arbitrator. This was the first time for Castro to be in an arbitration hearing and he was not aware of any dispute between himself and his former employer. Castro asserted that Biares hurriedly flipped through papers asking Castro to sign  and stating that the settlement was favorable to Castro. Biares reportedly told Castro that the settlement papers were “just a first payment.”

But there was no arbitral case filed by either party. Tri Marine provided Biares the release paperwork signed by Castro and a joint two-page motion to dismiss.

The New York Convention recognizes the enforcement of foreign arbitral awards. A court is obliged to confirm a foreign arbitral award unless the party resisting enforcement meets the substantial burden of proving one of the seven interpreted defenses.

The major question for the U.S. courts was whether there was an “arbitral award” that would fall under the New York Convention. In coming to its decision, the courts had to look at the definitions of “arbitration” and “arbitral award”.

The two terms, however, do not have definitions under the New York Convention and in the Federal Arbitration Act. Case law provided direction.  Using the definitions from American Law Institute’s Restatement, the Ninth Circuit decided that there was no arbitral award, tribunal or arbitration because the requirements of the parties’ arbitration agreements and the forum were not met.

Although the order was issued as an arbitral order, there were aspects of it that indicated otherwise. First, there was no dispute between Castro and his former employer Tri Marine. There was no genuine disagreement between the parties.  Therefore, they reached an agreement and there was no arbitral award handed down. Castro and Tri Marine had settled their dispute before they visited the arbitrator, with Castro releasing Tri Marine of any liability and all claims.

Arbitration is a consensual procedure, and there was no consent between Castro and Tri Marine to participate in an arbitration that was a meeting with a third party. Parties may waive contractual terms, but by his conduct, Castro did not have any intent to arbitrate the dispute in the Philippines. The meeting between the parties did not follow Philippines arbitral procedures.

The Ninth Circuit opinion stated that the parties’ free-floating settlement agreement did not transform into an arbitral award and the fact that there was an arbitrator present does not make it an arbitral award. The appeals court concluded that Tri Marine could seek to enforce the release as a contract matter, but the arbitrator’s order was not an award and it did not fall under a foreign arbitral award.

The author, a CPR Institute Summer 2019 intern, graduated last month with an LLM in dispute resolution from the University of Missouri School of Law in Columbia, Mo.

Workplace Mandatory Arb Ban Reversed by Kentucky Lawmakers

By Vincent Sauvet

Kentucky has re-authorized the use of mandatory arbitration in employment contracts less than five months after the state’s top Court declared the agreements void.

For a short time, Kentucky was the only state prohibiting the mandatory arbitration of employment disputes. Its legislature has now brought the Commonwealth back into the flock with Senate Bill 7.

In a unanimous 2018 decision, the Kentucky Supreme Court held that the state’s Revised Statutes § 336.700(2) prohibited employers from conditioning employment on an existing employee’s or prospective employee’s agreement to “waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit to which the employee or person seeking employment would otherwise be entitled.” N. Ky. Area Dev. Dist. v. Snyder, No. 2017-SC-000277-DG, 2018 Ky. LEXIS 363 (Sep. 27, 2018) (available at http://bit.ly/2HmZp8B) (quoting the statute, which is available in full in the opinion).

While the Snyder ruling made Kentucky the nation’s first state to prohibit mandatory employee arbitration agreements, it didn’t last long. With Senate Bill 7, sponsored by state Senate President Robert Stivers, Kentucky reinstated the use of mandatory arbitration in employment contracts,  rendering such agreements enforceable. The provisions of Senate Bill 7 are to be applied retroactively and prospectively.

The bill was signed by Kentucky Gov. Matt Belvin on March 25. The bill passed in the Senate the day before following a 25-11 vote, and a 51-45 vote in the House a day earlier. Save for a few Republicans voting against the bill–eight in the House and three in the Senate–both votes showed a partisan split, with majority Republicans voting for the measure and the Democratic minority voting against (one House Democrat joined 50 Republican colleagues in approving the measure). The bill also had strong support from the Kentucky Chamber of Commerce, the Kentucky League of Cities and numerous other employer and business groups.

This move happens in a context of long-running disagreement over the question of arbitration in nursing home care agreements between the Kentucky Supreme Court and the U.S. Supreme Court. In that dispute, the nation’s top Court set down the law, but the Kentucky Court managed to get in the last word and squash an arbitration agreement.

In Kindred, the Kentucky Supreme Court refused to enforce arbitration agreements signed on behalf of two nursing home residents on the ground that since the right to a trial by jury was “constitutionally sacred” and “inviolate,” the holder of a non-specific power of attorney was barred from entering any agreement on behalf of a principal that would forfeit that right to a jury trial, such as an arbitration agreement.

The U.S. Supreme Court held that the Federal Arbitration Act  “preempts any statute rule discriminating on its face against arbitration” and “displaces any rule that covertly accomplished the same objective by disfavoring contracts that have the defining features of arbitration agreements.” It reversed the Kentucky decision in Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017) (available at http://bit.ly/2JAWZ7Q).

But in the decision, the U.S. Supreme Court remanded one of the Kindred combined cases for further consideration to examine whether a power of attorney contract was broad enough to allow the attorney to enter into an arbitration agreement on behalf of a nursing home resident.

On remand, the Kentucky Supreme Court stuck to its view that the power of attorney didn’t allow the attorney to make the arbitration agreement, and it upheld its original determination striking arbitration. Kindred Nursing Ctrs. Ltd. P’ship v. Wellner, No. 2013-SC-000431-I (Ky. S.Ct. corrected Nov. 22, 2017) (available at http://bit.ly/2Q3k18A)).

In its first week of the current term last October, the U.S. Supreme Court denied the nursing home’s request to review the case, so it won’t be heard in Washington a second time. That leaves a narrow standard related to powers of attorney that could void an arbitration agreement in Kentucky.

But the broader Snyder decision went directly against the Kindred holding, as well as last year’s Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) (available at http://bit.ly/2Y66dwK), which permitted mandatory pre-dispute arbitration agreements as a condition of employment.  Snyder therefore was likely to constitute the start of another counterattack on the Kentucky Supreme Court’s arbitration agreement jurisprudence.

Instead, the Kentucky legislature decided to take the matter into its own hands.  The new law now ensures that Snyder is nothing more than a one-off.

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The author was a CPR Institute Spring 2019 intern. 

 

Update: J&J Defeats Move For Annual Meeting Vote on Mandatory Shareholder Arbitration

By Shannon Collins

Harvard Law School Professor Emeritus Hal Scott filed a complaint in a New Jersey federal court against health care giant Johnson & Johnson on behalf of a shareholder trust seeking to force J&J to hold a shareholder vote on barring arbitration in disputes between the company and its stockholders.

The U.S. Securities and Exchange Commission had previously issued a no-action letter that allowed J&J to exclude the provision from proxy materials based on a New Jersey law interpretation.

Scott, on behalf of the Doris Behr 2012 Irrevocable Trust, alleged that J&J violated federal securities laws by excluding the proposal he sent the company in November, on behalf of the trust, from its proxy materials for the shareholder meeting, scheduled for this week.

The complaint sought declaratory judgment stating that J&J violated the federal securities laws, in addition to injunctive relief under which J&J would be required to submit supplementary proxy materials to the shareholders, including Scott’s original proposal.

The injunction would have allowed a vote to go forward at the April 25 shareholders meeting, and also include a statement from J&J affirming that Scott’s proposal violates neither federal nor New Jersey laws. The injunction also requested that  J&J be prohibited from excluding any future, similar proposals.

U.S. District Court Judge Michael Shipp, of Trenton, N.J., denied the trust’s order to show cause on March 29 in an unpublished opinion, letting the SEC letter and J&J action stand.  (Available here.)

But Prof. Scott, joined by two law firms in his work on behalf of the trust, may have tapped into a future use for mandatory arbitration.  For background, see Shannon Collins, “Mandatory Shareholder Arbitration: J&J View Passes SEC’s Test,” CPR Speaks blog (March 18). The blog post  discusses the back and forth between Scott and J&J over Scott’s shareholder proposal. The controversial proposal advocates for a change to the J&J by-laws requiring all disputes brought by shareholders against the company to go through individual arbitration.

Per J&J’s request, the SEC issued the no-action letter stating the agency would not act against J&J if the company excluded Scott’s proposal from the proxy materials for its annual shareholder meeting.

In a brief supporting a “Motion for Order to Show Cause Why a Preliminary Injunction Should Not Issue,” Prof. Scott and the trust argued that J&J violated federal securities laws by excluding Scott’s shareholder proposal from the proxy materials.

Under 17 C.F.R. § 240.14a-8, all shareholder proposals must be included in the proxy materials unless they fall under one or more of several statutory exceptions. One of these exceptions, 14a-8(i)(2), allows exclusion of a proposal if it “would, if implemented, cause the company to violate state, federal, or foreign law to which it is subject.”

The SEC premised its no-action letter in large part on a statement from the New Jersey Attorney General Gurbir Grewal, who concluded that the proposal would violate state law. (Johnson & Johnson’s headquarters is in New Brunswick, N.J.) Grewal contended that recent changes to New Jersey law voids by-laws with forum-selection clauses regarding federal securities law claims. He also relied on the Delaware Chancery Court case Sciabacucchi v. Salzberg, 2018 WL 6719718 (Del. Ch. Dec. 19, 2018), holding that by-law amendments generally only relate to matters of internal concern, and forum selection is an external concern.

The trust’s main focus in its suit was the legal validity of its 2018 proposal. The trust argued that the arbitration-requirement proposal violates neither federal nor state law.  It also argued that the N.J. Attorney General’s opinion predicting state courts are likely to follow Delaware Chancery law prohibiting mandatory individual shareholder arbitration is not dispositive on the issue.

The trust relied principally on the Federal Arbitration Act, and the recent Supreme Court case of Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), as support for the legality of its proposal. The trust asserted that N.J. Attorney General Grewal did not identify any New Jersey statutory language or court decision that expressly applied to shareholder arbitration concerning federal securities law claims, and thus the proposal would not cause the company to violate state law.

The trust further bolstered its claim by declaring that even if New Jersey state law were to prohibit such a proposal, that state law would be preempted by the FAA, which would permit the proposal.

The FAA mandates that contractual arbitration provisions must be enforced. The trust argued that corporate by-laws are contracts between shareholders and the corporation, citing several New Jersey cases. It follows then that arbitration agreements in company by-laws should be enforced under the FAA just as they would in express contracts.

Therefore, following the Epic Systems case—which permitted predispute mandatory arbitration provisions with waivers of class processes as a condition of employment–shareholder arbitration of federal securities claims do not violate federal law. The trust stipulates that agreeing to arbitrate federal securities laws in no way waives compliance with the 1934 Securities Exchange Act. Waiver of compliance is prohibited by § 29(a).

Arbitrating securities law claims still preserves a shareholder’s right to enforce securities laws, the trust argued, it just does so through a specific proceeding.

The trust strongly advocated against the deference given to Sciabacucchi by the N.J. Attorney General, stating that it is not the law of New Jersey and that corporations are free to ignore it until it is. It also attempted to distinguish Sciabacucchi from the present situation by pointing out that Sciabacucchi concerns a forum-selection clause. Arbitration, the trust contended, is an entirely different matter because it is protected by the FAA.

Furthermore, the trust maintained that Sciabacucchi cannot be extended to another state regarding arbitration because the Sciabacucchi holding only applies to a subset of contracts; corporate by-laws and certificates of incorporation. Under the FAA, rules that forbid enforcement of arbitration agreements must apply to every contract in the state equally. Therefore, applying Sciabacucchi and treating contracts unequally would run afoul of the FAA.

Sciabacucchi held that corporate by-laws will only apply to internal affairs. Securities claims have been held to be external by the Delaware court, so J&J countered that including the proposal in its by-laws would be unenforceable.

J&J additionally consulted Pennsylvania law and concluded that New Jersey would likely follow corporate precedent from the state decision Kirleis v. Dickie, McCamey & Chilcote P.C., 560 F.3d 156 (2009). The Pennsylvania Kirleis court held in this case that arbitration clauses in corporate by-laws would not be enforceable unless shareholders expressly consent to the arbitration provision.

The trust points out, however, that the court recognized that it is generally assumed that shareholders and directors have knowledge of and accept the corporate bylaws. Emphasizing this, the trust pointed out that Pennsylvania has not affirmatively ruled that express agreement trumps the presumptive consent of by-laws by shareholders.

But J&J predicts that Pennsylvania would require express consent over a presumption of consent, and further predicts that New Jersey would use Pennsylvania as persuasive authority and follow suit. Once again, the trust pointed out that while the arbitration clause may be unenforceable, including an unenforceable provision in corporate by-laws is in no way a violation of state or federal law.

Prof. Scott’s brief criticizes the New Jersey Attorney General’s reliance on recent amendments to New Jersey corporate law by pointing out that that N.J. Stat. Ann. § 14A:2-9(5)(a), while authorizing certain forum-selection clauses in corporate by-laws, does not prohibit arbitration provisions and so the proposal does not violate any state law.

In response to the trust’s motion, Johnson & Johnson attorney Andrew Muscato, counsel to Skadden, Arps, Slate, Meagher & Flom in New York, wrote in a March 27 letter to U.S. District Court Judge Michael Shipp, in Trenton, N.J., that the trust failed to satisfy a single prong of the four-part test for a preliminary injunction.

Muscato particularly highlighted the trust’s lack of irreparable harm, pointing out the ample time the trust had to bring its claim against the company. Muscato posited that if the trust truly suffered irreparable harm, it would not have waited more than four-and-a-half months to bring suit.

The trust defended this delay in a letter also dated March 27 by claiming that it would not have had sufficient Article III standing prior to the release of the proxy materials. Up until the actual distribution of the proxy materials, the trust’s only injury was the potential for future harm, the letter stated.

The trust insisted that standing questions can be raised at any point during litigation and it refused to take the risk of bringing suit too early only to have its claims subject to rejection as premature several years down the line.

Muscato rebutted the standing issue introduced by the trust by citing several cases in which shareholders brought suit prior to the distribution of proxy materials.

Muscato insisted the reason for emergency relief was undue delay by the trust. If the trust had taken action sooner, then the complex matter could have been resolved.

Judge Shipp ultimately declined the order sought by the Trust for failure to show irreparable harm, agreeing with Muscato and J&J. (Linked above.)

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Historically, courts have favored arbitration, but the shareholder arbitration requirement proposals faces a volatile moment for the alternative dispute resolution process. SEC Chairman Jay Clayton seems to be open to the idea of shareholder arbitration in a publicly traded company. But groups like Secure Our Savings have strongly advocated against forced arbitration of shareholders.

The recent #MeToo movement has resulted in a push for repeals of arbitration clauses in employment contracts, specifically as they relate to sexual harassment.

So the potential ramifications of the J&J shareholder proposal could be go beyond the parties and have an effect on corporate governance. If it passes, it even could initiate a domino effect in which company after company implements mandatory individual shareholder arbitration. Should this occur, Congress could decide to step in and create a uniform standard for these clauses . . . or bar them altogether.

Either way, there is doubt about the future of processes to address shareholder disputes.

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The author is a CPR Institute Spring 2019 intern.