Contracts Commons^™

Mika V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 71 (Sep. 24, 2015), Kory Koerperich

Nevada Supreme Court Summaries

The court denied extraordinary writ relief from the district court’s decision to compel arbitration between Petitioners and their employer based on a long-form arbitration agreement signed only by the Petitioners, and federal law favoring arbitration agreements.

Tallman V. Eight Judicial District Court, 131 Nev. Adv. Op. 60673 (Sep. 24, 2015), Marta Kurshumova

Nevada Supreme Court Summaries

The Court held that an employment arbitration agreement, which contains a clause waiving the right to initiate or participate in class actions, constitutes a valid contract, even though it is not signed by the employer. The Court further determined that the Federal Arbitration Act applies to all transactions involving commerce and does not conflict with the National Labor Relations Act, which permits and requires arbitration. Finally, the Court found that a party does not automatically waive its contractual rights to arbitration by removing an action to federal court.

Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher

Georgia Journal of International & Comparative Law

No abstract provided.

Is The Albert H Kritzer Database Telling Us More Than We Know?, Thomas Neumann

Pace International Law Review

This article is the first in a series of articles attempting to provide a geographical and temporal overview of the application practice of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In this first article, the success of CISG is explored. The article develops the idea of using the Albert H. Kritzer Database to achieve an overview of the success of the Convention in practice. It is argued that the success of the Convention is useful to measure by its uniformity in practice, and therefore a set of criteria relating to the Convention’s application by …

Employee Beware! Employment Agreements And What The Technology Related Employee Should Know And Understand Before Signing That Agreement: A Practical Guide, Louis J. Papa

Touro Law Review

No abstract provided.

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.

Breaking “Too Darn Bad”: Restoring The Balance Between Freedom Of Contract And Consumer Protection, Stephanie Drotar

NYLS Law Review

No abstract provided.

An Empirical Analysis Of Noncompetition Clauses And Other Restrictive Postemployment Covenants, Randall S. Thomas, Norman Bishara, Kenneth Martin

Vanderbilt Law School Faculty Publications

Employment contracts for most employees are not publicly available, leaving researchers to speculate about whether they contain postemployment restrictions on employee mobility, and if so, what those provisions look like. Using a large sample of publicly available CEO employment contracts, we are able to examine these noncompetition covenants, including postemployment covenants not to compete ("CNCs" or "noncompetes'), nonsolicitation agreements ("NSAs"), and nondisclosure agreements ("NDAs'). What we found confirms some long-held assumptions about restrictive covenants but also uncovers some surprises.

We begin by discussing why employers use restrictive covenants and examining how the courts have treated them. We then analyze an …

Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles

Articles

The Supreme Court’s recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors have considered only whether class actions for monetary damages may be barred by arbitration clauses requiring individual adjudication. The Justices have not examined the enforceability of arbitration clauses or arbitral rules which explicitly prohibit claimants from seeking or arbitrators from granting broad injunctive relief in an individual dispute. I term these "anti-reform" provisions because they broadly prohibit an individual arbitral claimant from seeking to end a practice, change a rule, or enjoin an act that causes injury to itself and to similarly-situated non-parties. This …

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

"Whimsy Little Contracts" With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Paul F. Kirgis, Jeff Sovern, Elayne E. Greenberg, Yuxaing Liu

Faculty Law Review Articles

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

“Sticky” Arbitration Clauses? The Use Of Arbitration Clauses After Concepcion And Amex, Peter B. Rutledge, Christopher R. Drahozal

Scholarly Works

We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided. Our central finding is consistent …

Arbitration And The Contract Exchange, Andrew A. Schwartz

Publications

A contract exchange, defined as an organized marketplace for the creation or trading of specific contracts, provides benefits to its members as well as the public at large. But legal disputes can arise on contract exchanges, just as they do anywhere else, and those disputes can be litigated, mediated, arbitrated, or resolved in some other way. This Essay claims that arbitration, rather than litigation, is a particularly useful and appropriate means for resolving exchange-related disputes, and that this is true not only for traditional contract exchanges, like the Chicago Board of Trade, but also for online "consumer contract exchanges," such …

Enjoining Politically Motivated Strikes In Federal Courts: The Jacksonville Bulk Terminals Case, Mark A. Ozzello

Pepperdine Law Review

The United States Supreme Court, in Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, acknowledged that a work stoppage entirely motivated by political goals constitutes a "labor dispute" within the Norris-La Guardia Act which is prohibited from injunctive relief by a federal court. In so ruling, the Supreme Court found the Boys Markets, Inc. v. Retail Clerks Union and Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO exceptions, which allow an injunction to issue pending arbitration in situations where the dispute underlying the work stoppage is arbitrable, to be inapplicable to the no-strike clause in the collective-bargaining agreement scrutinized. …

The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota

Pepperdine Law Review

No abstract provided.

From Lord Coke To Internet Privacy: The Past, Present, And Future Of The Law Of Electronic Contracting, Juliet M. Moringiello, William L. Reynolds

Maryland Law Review

No abstract provided.

Eliminating The Mandatory Trade-Off: Should Employees Have The Right To Choose Arbitration ?, Michael Peabody

Pepperdine Dispute Resolution Law Journal

As more employers include mandatory arbitration provisions in their employment contracts, policy-makers are becoming concerned that employees are being forced to trade their civil and statutory rights for their jobs. The California Legislature is considering legislation designed to combat this tendency and to provide legal protection for employees who might otherwise be forced to waive the right for redress of grievances, legal protections against discrimination, and other rights. Although the legislation was designed to protect the constitutional rights of employees, there are legal considerations and policy concerns that challenge the viability of this type of legislation. The primary question is …

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

Medical Malpractice Arbitration In The New Millennium: Much Ado About Nothing ?, Ann H. Nevers

Pepperdine Dispute Resolution Law Journal

This paper reviews the constitutional issues surrounding medical malpractice arbitration clauses and the implementation of arbitration contracts, and the existing medical malpractice process. Federal preemption issues under the Federal Arbitration Act, enterprise liability and ERISA preemption, and cybermalpractice will be discussed. Finally, dispute resolution industry standards implemented by the American Arbitration Association and American Health Lawyers Association will be reviewed as well as current medical malpractice mediation practices in industry. While the past has shown that arbitration has not been used a great deal future trends may increase use. Emerging medical malpractice arbitration issues arising in the new millennium include …

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …

Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale

Pepperdine Dispute Resolution Law Journal

This article analyzes the impact of the courts' ever increasing priority to enforce arbitration agreements in Truth In Lending Act (TILA) claims and reform. Part I entails a general discussion of TILA's logistics; the goals, the means, and the remedies. Part II briefly traces the rise of arbitration as well as evaluating its various advantages and disadvantages. Part III reports on the current emphasis of enforcing arbitration agreements in federal courts by explaining the basis of enforcing the agreement. Part IV explores the impact of arbitrating TILA claims on the claim and on individuals. Part V provides an analysis of …

The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

There are millions of employees in America who work every day without regard to the technical and seemingly mundane matters that govern their employment. What they don't realize however, is that their employment may be governed by an arbitration agreement. The terms of the arbitration agreement may be unclear until a dispute arises. This is particularly applicable in the area of arbitral fees, where there is a split among United States Courts of Appeals when addressing the issue of who should pay the fees arising from the arbitration of employment disputes. This fissure in American jurisprudence is the subject of …