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California: Unconscionable to provide arbitration agreement to dancers while "mostly naked"

Sean Pon, an attorney with Hinshaw & Culbertson LLP, writes in JDSupra that a California federal court recently held that an arbitration agreement was unenforceable because of procedural and substantive unconscionablilty concerns. The opinion, Roe v. SFBSC Management, LLC, No. 14-03616 (N.D. Cal. March 2, 2015), holds that the parties had unequal bargaining power and that exotic dancers had no real chance to negotiate the agreement and had no meaningful choice but to sign the agreement. The dancers, according to the court, were presented the contracts "while mostly naked" and they were rushed, or felt rushed, to sign the agreement. The court also found that the arbitration agreement was unconscionable because of a one-way ban on collective actions and cost-shifting clauses of the agreement. Ultimately, the court struck the entire contract. Mr. Pon suggests that arbitration agreements must contain mutual provisions, must be fairly presented to employees, and the employees must have the opportunity to ...

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Texas: Published advertisement isn't a sanctionable violation of the ADR statute

In The Orchards on the Brazos, LLC v. Stinson, the Fort Worth Court of Appeals was asked to decide whether an advertisement placed in a local newspaper that outlined a settlement offer violated the Texas ADR statute. According to the court's opinion, after mediation and a trial, one of the parties took out an ad in a local newspaper that included statements about the settlement negotiations, including language that "At one point we turned down an offer of 100k from the developer." The other party filed a motion for sanctions, arguing that the settlement offer was a confidential communication defined by the Texas ADR statute. The trial court agreed to sanctions and awarded $5,000.00. The advertisement was not made during mediation nor in the presence of a third-party facilitator. According to the Court of Appeals, the advertisement was not subject to the confidentiality requirements of the Texas ADR statute, and, accordingly, wasn't sanctionable. H/T to Ronnie Hornberger for informing us of this opinion. ...

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Texas: Arbitration Clause Survives Termination or Repudiation of Contract

The Fort Worth Court of Appeals, in BBVA Compass Investment Solutions, Inc. v. Brooks, held that an agreement to arbitrate contained within a contract survives the termination or repudiation of the contract as a whole. The arbitration agreement within a written contract is separable from the entire contract. After finding that the arbitration provision survived, the Court then examined the scope of the arbitration provision, focusing on the factual allegations in the complaint, rather than the legal causes of action asserted. Determining the scope of the arbitration agreement is a question of law for the court. Here, the arbitration provision applied to "all controversies" with the Court analyzing the use of the conjunctive "or" in the arbitration agreement.

H/T to Ronnie Hornberger for informing us of this opinion.

Fifth Circuit: Arbitration panel's interpretation holds "however good, bad, or ugly"

In BNSF Railway Co. v. Alstom Transportation, Inc., the Fifth Circuit Court of Appeals vacated the district court's order which had vacated an arbitration panel's award. The Fifth Circuit held that BNSF failed to carry its burden to show that the arbitration panel was not "even arguably interpreting" a maintenance agreement with Alstom, holding that the arbitration's panel's construction of the agreement holds "however good, bad, or ugly."

H/T to Ronnie Hornberger for alerting us to this decision.


California: Employee's electronic signature may not be an "act" of the employee; arbitration agreement not enforced

Gary Gansle and Nisha Patel, attorneys at Patton Boggs, recently summarized a decision from the California Court of Appeal, holding that an employee's electronic signature to an arbitration agreement may not have been sufficient evidence that the signature was the act of the employee. The court then refused to enforce the arbitration agreement. The California's court's decision is here. The decision is worth reading because it discusses how the company should have authenticated the employee's electronic signature, with the court finding that the company's business manager did not explain how the employee's electronic signature could only be placed on the document by the employee.

How to Win a China Arbitration

Dan Harris, an attorney at Harris Moure, recently published an article titled "How to Win a China Arbitration." Harris writes that "Chinese companies are increasingly requiring commercial contracts with American companies" to have disputes resolved by arbitration in China. Harris' 5 tips on how to prepare and win an arbitration in China are here.

Baseball arbitration

Experienced arbitrators and mediators know about "baseball arbitration." Now is the season. You can find a list of the 175 players who filed for arbitration courtesy of the New York Times. The Times also reports that 95 players already settled, with David Price of the Detroit Tigers agreeing to a one-year, $19.75 million deal last Friday. Those cases that don't settle will be resolved by a three-person panel in February. Of the 146 players who filed for arbitration last year, only 3 needed decisions from arbitrators.

Looking for Mediator Horror Stories

Professor Art Hinshaw at the Sandra Day O'Connor College of Law at Arizona State University is seeking mediator horror stories to share with a broader audience. If you know of a mediator horror story, and can document it in some way, please email the story to

Blog: US Supreme Court Asked to Review Case Where Mediator Conflict Alleged to Exist

Hat tip to Disputing Blog.  According to Karl Bayer, author of the article, the US Supreme Court has been asked to review a federal court's order that did not set aside a jury verdict because a court-appointed mediator failed to disclose a "close personal relationship" with an attorney who represented several of the defendants. The Court of Appeals decision is here.


Blog: How to Find a Good Divorce Mediator

Michelle Rozen provides five "rules of thumb" for a good divorce mediator. Her article is located at the Huffington Post.
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