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 7 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.