ADR CORNER
Arbitration Case Law Update
DONNA GREENSPAN SOLOMON
Morgan v . Sundance , Inc ., 142 S . Ct . 1708 ( 2022 ). Employee brought nationwide collective action asserting employer violated federal law regarding overtime payment . Eight months later , employer moved to compel arbitration . The district court denied the motion , and the Eighth Circuit reversed , finding that a waiver of the right to arbitration required a showing of prejudice . The US Supreme Court vacated and remanded , holding that prejudice is not required to show that a party , by litigating too long , waived its right to compel arbitration under the Federal Arbitration Act (“ FAA ”).
Viking River Cruises , Inc . v . Moriana , 142 S . Ct . 1906 ( 2022 ). The FAA preempts any state rule discriminating on its face against arbitration , for example , a law prohibiting outright the arbitration of a particular type of claim .
Southwest Airlines Co . v . Saxon , 142 S . Ct . 1783 ( 2022 ). Any class of workers directly involved in transporting goods across state or international borders falls within FAA ’ s exemption for contracts of employment of seamen , railroad employees , or any other class of workers engaged in foreign or interstate commerce .
Outokumpu Stainless USA , LLC v . Coverteam
SAS , 17-10944 , 2022 WL 2643936 , at * 3 ( 11th Cir . July 8 , 2022 ). On remand from the US Supreme Court , the Eleventh Circuit found that non-signatory to the arbitration agreement could nevertheless compel arbitration as a defined party covered by the arbitration clause .
Attix v . Carrington Mortgage Services , LLC , 35 F . 4th 1284 ( 11th Cir . 2022 ). The Eleventh Circuit held that a borrower and mortgage servicer , through an express delegation clause , clearly and unmistakably agreed to submit questions of arbitrability to the arbitrator , stating : “ At the end of the day , the ‘ arbitrability of arbitrability ’ is simply about the freedom to decide who decides disputes . Federal law provides , emphatically , that parties may opt out of the judicial system . One would be hard-pressed to find a topic about which the Supreme Court has provided more consistent clarity in recent years than arbitration . The Court ' s precedents make clear that , when an appeal presents a delegation agreement and a question of arbitrability , we stop . We do not pass go . At some point in this litigation , someone may , perhaps , collect $ 200 . Whether anyone will — and who will ultimately decide whether anyone does — are not questions we answer today .”
Perera v . Genovese , 345 So . 3d 882 ( Fla . 4th DCA 2022 ). Once a court determines that arbitrator exceeded his or her powers , the court ' s decision to vacate the award either in whole or in part is a discretionary decision that turns on whether the arbitrator ' s other rulings are intertwined with the arbitrator ' s unauthorized ruling .
Navarro v . Varela , 345 So . 3d 365 ( Fla . 3d DCA 2022 ). The determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause . The trial court did not err in concluding that claims for intentional infliction of emotional distress and violations of the Florida Civil Rights Act were not arbitrable because they lacked a sufficient nexus to the parties ’ agreement .
Malek v . Malek , 346 So . 3d 179 ( Fla . 3d DCA 2022 ). Arbitration agreement applicable to disputes between a company and its shareholders did not apply to dispute over ownership of the company in a dissolution action .
Addit , LLC v . Hengesbach , 341 So . 3d 362 ( Fla . 2d DCA 2022 ). Arbitration agreement contained on page 15 of 23-page assisted living residency agreement , which was neither set off nor made conspicuous in any manner , and where there was no opportunity for meaningful negotiation , was a contract of adhesion and was procedurally unconscionable ; provision carving claims for eviction out of arbitration agreement was substantively unconscionable ; as a matter of first
PBCBA BAR BULLETIN 6 impression , confidentiality provision of arbitration agreement was not substantively unconscionable ; however , trial court erred in denying motion to compel arbitration where offending provisions were severable .
UniFirst Corp . v . Stronger Collision Ctr .,
LLC , 336 So . 3d 1283 ( Fla . 3d DCA 2022 ). Under the rules of the American Arbitration Association ( AAA ) incorporated into arbitration provision , plaintiff was entitled to proceed to ex parte arbitration under the AAA ' s expedited rules , without seeking a court order compelling arbitration , after defendant chose not to participate in arbitration and did not reply to arbitration notices .
Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist . Donna is a Member of the National Academy of Distinguished Neutrals and serves as a Chair on AAA ( Commercial Panel ) and FINRA arbitrations . She is also a Certified Circuit , Appellate , and Family Mediator and Florida Supreme Court Qualified Arbitrator . Donna is also a Member of the Florida Supreme Court Committee on Standard Jury Instructions — Contract and Business Cases . Donna can be reached at ( 561 ) 762- 9932 or Donna @ SolomonAppeals . com or by visiting www . solomonappeals . com .
For additional ADR tips and resources , go to www . palmbeachbar . org / alternative-disputeresolution-committee .