JULY/AUG 2021 BAR BULLETIN July | August 2021 - Page 5

ADR CORNER

ADR CORNER

Arbitration Case Law Update

DONNA GREENSPAN SOLOMON
O ' Neal Constructors , LLC v . DRT Am ., LLC , 991 F . 3d 1376 ( 11th Cir . 2021 ). Service of a “ notice of a motion to vacate ” under 9 U . S . C . § 12 is not accomplished by emailing a “ courtesy copy ” to opposing counsel where party to be served did not expressly consent in writing to service by email .
Mexicanos v . Executive MFE Aviation , LLC , 310 So . 3d 76 ( Fla . 4th DCA 2021 ). Trial court could not deny aircraft purchaser ' s motion to compel arbitration of claims asserted by aircraft maintenance and repair servicers , on the ground that aircraft purchase agreements containing arbitration clauses had expired before claims arose , without first determining whether servicers , who were not parties to the purchase agreements , were nevertheless bound by the arbitration clauses ; purchaser alleged that servicers were bound by virtue of their joint venture with aircraft seller or as third-party beneficiaries of the purchase agreements , and if servicers were in fact bound , and if purchaser has not waived right to arbitrate , then remaining issues of arbitrability , including whether the agreements had terminated , were for arbitrator to decide .
Black Knight Servicing Techs ., LLC v . PennyMac Loan Services , LLC , 310 So . 3d 1116 ( Fla . 1st DCA 2021 ). Loan services limited liability company ( LLC ) did not waive its contractual right to arbitration with servicing technology LLC by filing a separate lawsuit raising separate claims against the servicing technology LLC ' s parent company in federal court ; parent company was a legally separate entity from servicing technology company , and loan services LLC ' s lawsuit in federal court was carefully worded and did not mention its contractual relationship with servicing technology LLC , which suggested an intent to safeguard its arbitration right .
Jean v . Bayview Loan Servicing , LLC , 46 Fla . L . Weekly D331 ( Fla . 3d DCA Feb . 10 , 2021 ). Trial court was required to conduct evidentiary hearing to determine whether arbitration agreement existed between employee and employer in action seeking damages for unpaid overtime compensation ; employee alleged he had never received , reviewed , or signed dispute resolution and arbitration policy , employee alleged electronic acknowledgement of his signature on arbitration policy was either forged or falsified , and employer alleged all employees were required to electronically sign arbitration policy as a condition of continued employment .
Kratos Investments LLC v . ABS Healthcare Services , LLC , 46 Fla . L . Weekly D603 ( Fla . 3d DCA Mar . 17 , 2021 ). Exception in arbitration clause in insurance company ' s agreements with agents , allowing insurance company to pursue its equitable remedies in any court of competent jurisdiction , did not apply to insurance company ' s claims against nonsignatory businesses for conspiracy to breach agent agreement and tortious interference with agent agreement , and thus nonsignatory businesses could compel arbitration of the claims , although insurance company ' s prayer for relief sought equitable remedy of disgorgement ; each count of insurance company ' s complaint asserted a legal cause of action seeking compensatory damages such as consequential damages , lost profits , and disgorgement of ill-gotten gains .
Fallang Family Ltd . P ' ship v . Privcap Companies , LLC , 46 Fla . L . Weekly D639 ( Fla . 4th DCA Mar . 24 , 2021 ). On motion to compel arbitration , arbitration agreement that made reference to “ AAA ” and “ AAA rules and procedure ” did not clearly and unmistakably supplant trial court ' s statutory power to decide what was arbitrable , despite AAA Commercial Arbitration Rule giving arbitrator authority to decide what controversies were within scope of agreement ; arbitration agreement did not attach any portions of AAA rules or explain where those rules could be found , arbitration clause did not identify which subject-area version of AAA rules applied , and AAA Commercial Arbitration Rules , had they been specified , did not grant exclusive authority to arbitrator to decide arbitrability .
Lemos v . Sessa , 46 Fla . L . Weekly D701 ( Fla . 3d DCA Mar . 31 , 2021 ). Cost-shifting and feeshifting provisions of arbitration clause in retainer agreement entered into by client and her attorney and law firm , particularly
PBCBA BAR BULLETIN 5 when coupled together , were a de facto attempt to preemptively limit attorney ' s liability by chilling client ' s willingness to dispute any issue of client ' s representation , and thus were violative of public policy and invalid ; although cost-shifting provision allowed for after-the-fact adjustment by arbitrator , provision would require client to pay , in advance , all costs associated with arbitration , and fee-shifting provision would require client to pay all of attorney ' s fees and costs associated with an arbitration , which was not conditioned upon attorney prevailing in arbitration and which was not reciprocal , creating a deterrent effect .
UATP Mgmt ., LLC v . Barnes , 46 Fla . L . Weekly D875 ( Fla . 2d DCA Apr . 16 , 2021 ). Friend of child ' s mother who warranted and represented that she had mother ' s actual or implied authority to execute release and waiver of liability at indoor amusement park did not establish apparent authority to do so , and , thus , valid arbitration agreement did not exist to require arbitration of suit for child ' s injuries ; agreement was not signed by mother against whom franchisor sought enforcement , and franchisor did not argue that mother represented anything to franchisor and did not rely upon any representation by mother .
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 AAA ’ s Roster of Arbitrators ( Commercial Panel ). She is a FINRA Chair-Approved and Florida Supreme Court Qualified Arbitrator . She is also a Certified Circuit , Appellate , and Family Mediator . Donna is 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 .