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Arbitration – Private arbitration panel fits definition of ‘tribunal’
In an issue of first impression, the court joined the Sixth Circuit in holding a private arbitral panel is a “tribunal” under 28 U.S.C. § 1782(a), which allows a district court to order testimony or documents for use in the “tribunal.” There is now a deep split among the circuits, with the Second and Fifth […]
Arbitration –Nursing Home Contract – Missing Pages – Internal Conflict
When a nursing home resident was being moved to a more skilled facility, her daughter was presented with only the signature page of a three-page arbitration agreement, and that page had only small-font headings. Moreover, the facility’s admission agreement—which incorporated by reference all documents the daughter signed or received during the admission process—expressly reserved [&he[...]
Arbitration – Dispute over arbitration clauses require trial
Where the Berkeley County School District and parties it has sued disagree about the existence and enforceability of arbitration agreements, there are disputes of material fact that must be resolved at trial. Background The appellants sought arbitration of federal and state claims alleged against them by Berkeley County School District. The district court denied the […]
Arbitration – Jury Trial Right – Litigation Participation – Attorney’s Fees
Although G.S. § 22B-10 says it is unconscionable and unenforceable for a contract to require a party to waive his right to a jury trial, the statute goes on to say that it does not prohibit parties from entering into arbitration agreements. The parties’ arbitration rider explained that, by agreeing to arbitration, plaintiffs were […]
Arbitration – Skilled Nursing Home – Attorney-in-Fact – No Fiduciary Duty
Although licensed memory wards possess special knowledge and skill concerning the care of those afflicted with cognitive impairments, the court declines plaintiff’s invitation to create a de jure fiduciary relationship between assisted living facilities with memory wards and their residents. We reverse the trial court’s denial of defendant Smithfield East Health Holdings, LLC’s motion to [&h[...]
Arbitration – Agreement was insurance contract, arbitration clause void
Having determined that the policies at issue constituted an insurance contract under Virginia law, the court said a private day school was not required to submit its dispute to arbitration because the agreement containing the arbitration clause is part of a single integrated contract, and Virginia Code § 38.2-312 renders void arbitration clauses contained in […]
Arbitration – Civil Practice – Interlocutory Appeal – FAA
In N. Carolina Elec. Membership Corp. v. Duke Power Co., 95 N.C. App. 123, 381 S.E.2d 896 (1989), we held that an order compelling arbitration under the North Carolina Revised Uniform Arbitration Act did not affect a substantial right and was not immediately appealable. Plaintiff appeals from an order compelling arbitration under the Federal Arbitration […]
Arbitration – Arbitrability – AAA Rules – Carve-out Issues – Judicial Decision
Where an arbitration clause both incorporates American Arbitration Association rules – which reserve questions of arbitrability to the arbitrator – and exempts certain claims from arbitration, and where all of plaintiff’s causes of action relate to the carved-out claims, it is up to the judge to decide whether plaintiff’s claims are arbitrable. Plaintiff’s claims against […]
Arbitration – Ambiguous Clause – Public Policy
Where the parties’ arbitration clause is ambiguous, we must defer to North Carolina’s strong policy favoring arbitration. We reverse the trial court’s order, which denied defendant’s motion to compel arbitration, and we remand for entry of an order compelling arbitration. Plaintiff sought $2,708,254.96 in damages based on claims for breach of contract and breach of […]
Arbitration – Shareholders Agreement – Majority Owner – AAA Rules – Arbitrability
This dispute turns on who is the majority owner of a corporation. Where the arbitration clause in the corporation’s shareholders agreement clearly adopts the Commercial Rules of the American Arbitration Association, it is up to the arbitrator to decide whether the parties’ disputes are within the scope of the arbitration clause. Plaintiff’s claims shall be […]
Arbitration – Attorneys – Fee Dispute – Stipulations – Retainer Contract & Amendment
Holding: Even though the parties stipulated that the Sept. 14, 2011, disbursement of settlement funds was done pursuant to their March 2010 retainer agreement, the arbitrator could nevertheless consider the plaintiff-clients’ evidence that the parties had modified the retainer agreement after March 12, 2010 (by capping the amount of fees at $40,000). The arbitrator’s reasoning […]
Arbitration – Decision reserving judgment was not “final”
Holding: A written decision resulting from the parties’ agreed-upon dispute-resolution process was not a “final” decision under the Federal Arbitration Act because it reserved the decision-maker’s right – without time limitation – to change the decision if its underlying assumptions proved incorrect. Background This appeal stems from a disagreement over the amount that Defendant Sprint[...]
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