Archives: Arbitration/Appraisal

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Supreme Court to Decide Whether Class Action Arbitration Is Allowed Where Arbitration Clause Is Silent Regarding Availability of Class Proceedings

The Supreme Court recently granted certiorari in Lamps Plus Inc. v. Varela, No. 17-988. The question presented in the petition for certiorari is: “Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.” The Court will review … Continue Reading

Oral Argument in Epic Systems Corp. v. Lewis: Class Action Waivers in Employment Agreements

The Supreme Court began its new Term yesterday with oral arguments in cases involving whether arbitration agreements permitting only individual (non-class) arbitrations are enforceable under the Federal Arbitration Act, or prohibited by the National Labor Relations Act as an improper restriction on collective action. It is a case that essentially pits one federal statute against … Continue Reading

Supreme Court to Hear Class Action Cases Involving Class Action Waivers and Tolling of Statutes of Limitations

The U.S. Supreme Court recently granted certiorari in class action cases involving: (1) class action waivers in employment contracts; and (2) whether filing of a securities class action tolled a statute of repose. In both cases the questions presented are relatively narrow, but opinions issued by the Supreme Court potentially could have broader implications for … Continue Reading

Using Appraisal to Defend Against a Class Action on Property Insurance or Auto Insurance

In industries other than insurance, arbitration provisions have become a key technique used to defend against class actions. The U.S. Supreme Court has made it quite clear over the last few years that it will enforce the use of an arbitration provision that requires arbitration of individual claims and essentially bars the filing of class … Continue Reading

American Express v. Italian Colors Restaurant Supreme Court Decision: Potential Insurance Industry Impact

The U.S. Supreme Court recently issued its opinion in American Express Company v. Italian Colors Restaurant, No. 12-133, addressing whether an arbitration clause prohibiting class-action arbitrations is enforceable when the cost of arbitrating a federal statutory claim on an individual basis exceeds the potential recovery.  The Court held, 5-3, that such prohibitions on class arbitrations … Continue Reading

Oxford Health Plans v. Sutter: Supreme Court Largely Sidesteps Class Arbitration Issues

Yesterday, the U.S. Supreme Court issued its opinion in Oxford Health Plans LLC v. Sutter, No. 12-135, addressing whether an arbitrator exceeded his powers in deciding that a contract provided for class arbitration (i.e., a class action arbitration proceeding).  The Court held that the arbitrator did not exceed his powers in making that ruling, although … Continue Reading

Supreme Court Oral Argument on Arbitration Clauses With Class Action Waivers: American Express v. Italian Colors Restaurant

What restrictions are there, if any, on companies’ use of arbitration clauses that prohibit class action arbitrations?  On February 27, the U.S. Supreme Court heard oral argument in a case that may address that question.  American Express Company v. Italian Colors Restaurant, No. 12-133 (transcript) is a sequel to the Supreme Court’s 2011 decision in … Continue Reading

Auto Insurance Class Action Involving Seatbelts: California Federal Court Refuses to Compel Appraisal, Excludes Expert And Denies Class Certification

A recent decision by the Eastern District of California addressed several significant issues in a putative class action alleging that an insurer improperly failed to cover the cost of replacing seatbelts after serious auto accidents.  In Watts v. Allstate Indemnity Company, No. CIV. S-08-1877 LKK/GGH, 2013 U.S. Dist. LEXIS 7407 (E.D. Cal. Jan. 17, 2013), … Continue Reading

Supreme Court Grants Certiorari in American Express Case Involving Arbitration Provisions That Prohibit Class Action Arbitrations

On November 9, the U.S. Supreme Court granted certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133 (order granting certiorari; docket).  The question presented is “Whether the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration … Continue Reading

Microsoft Adopts Arbitration Provisions With Class Action Waivers: Will Insurance Companies Follow?

A recent column by David Lazarus in the Los Angeles Times, “Microsoft Ending Consumers’ Ability to File Class-Action Suits,” reports that Microsoft is implementing arbitration provisions with class action waiver provisions.  The article discusses a blog post by Tim Fielden, Assistant General Counsel of Microsoft regarding this change.  Fielden’s blog post explains: When a customer … Continue Reading

Insurance Information Institute (III) Blog Reports That Arbitration Saved Insurance Industry Over $700 Million in Litigation Costs in 2011: Will Similar Savings Be Achieved By Expanding Consumer Arbitrations?

I found interesting a recent blog post by Claire Wilkinson of the Insurance Information Institute (III) reporting that: In a new record, nearly 520,000 insurance claims disputes valued at more than $2.4 billion were resolved via arbitration in 2011, Arbitration Forums Inc reports. According to AF, the nation’s largest provider of inter-insurance dispute resolution services, … Continue Reading

Class Action Waiver in Arbitration Provision Found Unenforceable By Second Circuit in American Express Case, Notwithstanding AT&T v. Concepcion

On January 30, I published a blog post about a Southern District of New York decision holding that an arbitration clause barring class actions was unenforceable because the costs of an individual arbitration effectively would preclude the plaintiff from pursuing her statutory rights under the Fair Labor Standards Act.  The Second Circuit has now reached … Continue Reading

How Plaintiff-Friendly Does An Arbitration Clause Need to Be to Trigger AT&T v. Concepcion? Southern District of New York Opinion Weighs In

One of the interesting open questions after AT&T v. Concepcion was decided by the Supreme Court is to what extent an arbitration clause must be plaintiff-friendly in order for a ban on class actions to be fully enforceable.  A recent opinion by Judge Kimba M. Wood of the Southern District of New York addressed this … Continue Reading

ABA Premier Speaker Series Webinar on Class Actions

Earlier this week I attended the ABA’s national webinar entitled “The Future of Class Actions,” part of its Premier Speaker Series.  The panelists were Paul Bland of Public Justice, Mark Perry of Gibson Dunn and Judge Lee Rosenthal of the Southern District of Texas.  Here is what I found most interesting:  Paul Bland, the plaintiffs-side … Continue Reading

Arkansas Supreme Court Allows Insurance Class Action to Proceed Despite Arbitration Provision

As I’ve noted in prior posts regarding the U.S. Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion (see, for example, my August 22, 2011 post), the insurance industry is in a somewhat unique position with respect to the use of arbitration clauses as a mechanism of avoiding class action exposure.  One reason for this … Continue Reading

Recent New Insurance Class Actions Involving Use of Staff Counsel, Wildfire Claims, and Depreciation on Auto Claims

Several notable recent class action filings against insurers have come across my desk (or computer screen) and seem worthy of interest to readers of this blog.  I will summarize and comment briefly on them.  If you’d like a copy of any of the complaints, just e-mail me. Use of Staff Counsel:  In Golden v. State … Continue Reading

Will Concepcion End Class Actions? Law Professor Says “Yes”

There has been a lot written about what impact the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion will have on the future of class actions (if you haven’t followed this closely, see my prior posts about the Supreme Court’s decision, opinions by the Colorado federal court and Northern District of California applying Concepcion, … Continue Reading

Further Thoughts on How Insurance Companies Might Take Advantage of Concepcion

In my prior post about the Supreme Court’s decision in AT&T Mobility v. Concepcion, I made some preliminary observations about how insurance companies might take advantage of the opportunity provided by that decision to potentially reduce class action exposure through the use of arbitration clauses that bar class arbitrations.  I’ve given some further thought to … Continue Reading

Can an Adhesion Contract Defense Preclude Enforcement of an Arbitration Provision After AT&T v. Concepcion? Colorado Federal Court Says No

Following the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion (see my prior blog post), a key battleground is going to be what defenses to arbitration of a named plaintiff’s claim remain viable.  We know that the mere fact that the arbitration provision does not allow a class arbitration is not enough to render … Continue Reading

Does Stolt-Nielsen Allow An Arbitrator To Decide Whether An Arbitration Agreement Allows Class Arbitration Implicitly? Second Circuit Panel Says “Yes” In A 2-1 Decision

A recent Second Circuit decision suggests that there may be a loophole in the Supreme Court’s decision in Stolt-Nielsen, S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), which may allow arbitrators to decide, in some circumstances, whether an arbitration agreement permits class arbitration where it does not expressly provide for it. In Jock … Continue Reading

Title Insurance Class Actions: Arbitration As A New Defense Strategy After AT&T Mobility v. Concepcion

Law360 alerted me to one of the first significant decisions applying the Supreme Court’s opinion in AT&T Mobility v. Concepcion (see my blog post about the Concepcion decision) – the Northern District of California decision in In re California Title Insurance Antitrust Litigation, No. 08-01341 JSW, slip op. (N.D. Cal. June 27, 2011).  (I don’t … Continue Reading

Appraisal Under Property Insurance Policies: California Court of Appeal Rules That Trial Courts Have Discretion To Defer Appraisal Until After Resolution Of Declaratory Judgment Claim

The California Court of Appeal recently held in a putative class action that trial courts have discretion to defer an appraisal (which is similar to arbitration but limited to resolution of the amount of a property insurance loss) until after resolution of a declaratory judgment claim.  The court did not address what impact that may … Continue Reading

Supreme Court Decision In AT&T Mobility v. Concepcion: Potential Impact on Insurance Class Actions

The Supreme Court recently issued a decision in AT&T Mobility LLC v. Concepcion.  The majority upheld the use of a class action waiver in an arbitration provision in cell phone contracts.  The Court held that the Federal Arbitration Act preempted California state law on unconscionability.  The Ninth Circuit had held that under California law the … Continue Reading