R. Mark Donnell – August 31, 2012 There are plenty of reasons that parties include arbitration clauses in their contracts. But, there may also be good reasons to choose not to invoke those clauses, at least in the short term, even when one party has filed a complaint. For example, if a defendant believes the… Continue reading “Testing the Water Before Taking the Swim” – How Participating in Litigation May Constitute Waiver of the Right to Arbitration
Category: Arbitration
California Supreme Court Enforces Arbitration Provision in Construction Defect Case
Timothy J. Toohey – September 14, 2012 In our December 2011 Under Construction newsletter, we reported on the tendency of certain California courts to decline to enforce arbitration provisions in construction defect cases. See Arbitration in California Construction Defect Cases After AT&T Mobility v. Concepcion. As we noted, California courts have continued after the U.S.… Continue reading California Supreme Court Enforces Arbitration Provision in Construction Defect Case
Delaware Amends Building Construction and Payment Statute
Seth A. Niederman – July 20, 2012 Delaware recently passed House Bill No. 109, which amends Delaware’s laws regarding Building Construction Payments. Two notable revisions which may be of interest to our readers: The amendments clarify when fees and costs may be awarded and the standard for awarding fees (see previous post on recovery of attorney’s fees here). Specifically, the… Continue reading Delaware Amends Building Construction and Payment Statute
Parties can Waive Arbitration, Despite a “No Waiver” Clause in Contract
June 1, 2012 The Sixth Circuit easily affirmed a district court’s finding that the defendant had waived its right to arbitration by participating in litigation for eight months. Johnson Assoc. Corp. v. HL Operating Corp., __ F.3d __, 2012 WL 1861675 (6th Cir. May 23, 2012). Plaintiffs had filed suit in late December of 2009… Continue reading Parties can Waive Arbitration, Despite a “No Waiver” Clause in Contract
Jury Waivers: an Alternative to Arbitration
The practice of requiring employees to sign mandatory arbitration agreements has become more widespread, and the enforceability of those agreements are routinely accepted by the courts. The pros and cons that are typically associated with arbitration include the following: Avoidance of Juries: Conventional wisdom is that arbitrators tend to be both more predictable in decision… Continue reading Jury Waivers: an Alternative to Arbitration