PBCBA BAR BULLETINS pbcba_bulletin_May 2019 | Page 7
ADR C o r n e r
Arbitration Case Law Update
DONNA GREENSPAN SOLOMON
The following are recent cases of interest
regarding arbitration issues:
Henry Schein, Inc. v. Archer & White Sales,
Inc. , 139 S. Ct. 524 (2019). Where an arbi-
tration agreement delegates threshold
question of arbitrability to the arbitrator, a
court may not override the contract, even
if it thinks that the argument that the ar-
bitration agreement applies to a dispute is
wholly groundless.
New Prime Inc. v. Oliveira , 139 S. Ct. 532
(2019). Federal Arbitration Act's exclusion
for “contracts of employment” of certain
transportation workers removes both em-
ployer-employee contracts and contracts
involving independent contractors from
Act's coverage.
JPay, Inc. v. Kobel , 904 F.3d 923 (11th Cir.
2018). As matter of first impression, avail-
ability of class arbitration is presump-
tively for court to decide, but clear and
unmistakable delegation to arbitrator to
decide gateway questions overcomes this
presumption.
Pictet Overseas Inc. v. Helvetia Tr. , 905 F.3d
1183 (11th Cir. 2018). Financial Industry
Regulatory Authority (FINRA) Rule requir-
ing associated persons of FINRA members
to arbitrate applies only to disputes in con-
nection with business activities undertak-
en in capacity as associated person of the
FINRA member.
Dye v. Tamko Bldg. Products, Inc. , 908 F.3d
675 (11th Cir. 2018). By unwrapping shin-
gles packages with conspicuously-print-
ed arbitration provision, roofers installing
shingles on home bound the homeowners
to arbitrate their claims against manufac-
turer.
Lowe v. Nissan of Brandon, Inc. , 235 So. 3d
1021 (Fla. 2d DCA 2018). Documents exe-
cuted contemporaneously with each other
should be interpreted as a whole, includ-
ing arbitration provisions therein.
Stankos v. Amateur Athletic Union of the
United States, Inc. , 255 So. 3d 377 (Fla. 4th
DCA Sept. 12, 2018). Filing an amended
complaint does not revive a right to arbi-
tration after waiver by answering a com-
plaint and engaging in discovery directed
to the merits.
Nat'l Millwork, Inc. v. ANF Group, Inc. , 253
So. 3d 1261 (Fla. 4th DCA 2018). An arbi-
tration clause attempting to expand the
scope of judicial review in conflict with
the Arbitration Code is unenforceable.
Darden Restaurants v. Ostanne , 255 So. 3d
382 (Fla. 4th DCA 2018). Provision giving
arbitrator sole authority to determine el-
igibility of a dispute for arbitration and
whether it was timely filed is valid and en-
forceable by employer where former em-
ployee did not challenge provision in em-
ployment discrimination action; employer
does not waive arbitration by participating
in EEOC proceedings.
Adkins v. Mem'l Motors, Inc. , 260 So. 3d
408 (Fla. 2d DCA 2018). Contractual right
of party to arbitration is not governed by
rules unilaterally adopted by a private en-
tity such as the American Arbitration As-
sociation unless those rules are explicitly
incorporated into the contract.
Countyline Auto Ctr., Inc. v. Kulinsky , 257
So. 3d 1086 (Fla. 4th DCA 2018). Used car
buyers' defamation claim against seller
fell within scope of car sales contract's ar-
bitration provision, where arbitration lan-
guage expressly contemplated tort action,
arbitration language was broad because
of its “relates to” language, there was sig-
nificant relationship between claim and
agreement, and any ambiguity in agree-
ment was resolved in favor of arbitration.
MetroPCS Communications, Inc. v. Porter,
44 Fla. L. Weekly D74 (Fla. 3d DCA Dec. 26,
2018). Wireless customer was put on no-
tice that contract was subject to arbitra-
tion where customer received text mes-
sage but chose not to click on hyperlink to
review terms and conditions.
Johnson by & through Johnson v. Heart-
land of Fort Myers FL, LLC , 257 So. 3d 634
(Fla. 2d DCA 2018). Arbitration agreement
between nursing home and former res-
PBCBA BAR BULLETIN
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ident applied to former resident's negli-
gence claim for injuries arising at nursing
home even if agreement applied only pro-
spectively; although former resident sus-
tained her injuries, and her cause of action
accrued, before agreement was executed,
dispute or controversy between former
resident and nursing home did not arise
until she filed suit.
Verizon Wireless Pers. Communications,
LP v. Bateman , 44 Fla. L. Weekly D413 (Fla.
2d DCA Feb. 8, 2019). Customer's claim that
wireless provider violated the Consumer
Collection Practices Act by attempting to
collect on a debt previously discharged in
bankruptcy was not arbitrable.
Amalgamated Transit Union, Local 1579 v.
City of Gainesville , 44 Fla. L. Weekly D478
(Fla. 1st DCA Feb. 15, 2019). Certifying con-
flict with the Third, Fourth, and Fifth Dis-
tricts, the First District found it had juris-
diction over petition for writ of certiorari
seeking review of trial court’s order vacat-
ing arbitration award and ordering new
arbitration; the Court found that trial court
impermissibly reviewed arbitrator’s factu-
al findings and application of law.
Donna Greenspan Solomon is one of the
few attorneys 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 Flor-
ida 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, and a past Chair of
the Business Litigation Certification Com-
mittee. Donna can be reached at (561) 762-
9932 or [email protected] or
by visiting www.solomonappeals.com.
For additional ADR tips and resources, go
to www.palmbeachbar.org/adr.