Litigation

By: Nancy J. Glidden

Pennsylvania businesses seeking to minimize class action exposure and generally seeking to enforce arbitration provisions should be aware of a recent decision issued by the Federal District Court for the Eastern District of Pennsylvania, Clerk v. Ace Cash Express, Inc..  Historically, Pennsylvania courts have enforced arbitration provisions in contracts. Recently, the Court (applying Pennsylvania law) added to the body of law which favors enforcing arbitration provisions.

At issue in Clerk was the enforceability of an Arbitration Agreement that was part of a loan transaction, and which mandated submitting all disputes to arbitration on an individual (ie. non-class action) basis.   The Court found the Arbitration Agreement was neither procedurally nor substantively unconscionable, and enforced the Agreement according to its terms – which eliminated all class claims and required Clerk to arbitrate her individual claims.

Significant to the outcome was the fact that the Arbitration Agreement gave Clerk thirty (30) days to opt-out without any adverse effect on the terms of the underlying loan transaction, but Clerk failed to exercise the opt-out.

Clerk is a good read because the analysis it provides concerning the elements necessary for arbitration provisions to survive challenge is useful background when drafting.

Please contact Nancy J. Glidden for more information.

By: Stephen P. Lagoy

Baseball arbitrations (see previous blog posts here and here) have become increasingly rare as the owners and players opt to negotiate a contract rather than place their fate in the hands of an arbitration panel. The only exception thus far this year has been the case of Milwaukee Brewers outfielder Corey Hart. In the first Major League Baseball salary arbitration this year, Hart won his case against the Brewers. The three-member panel of arbitrators awarded Hart the $4.8 million salary he was seeking for 2010. The Brewers had proposed $4.15 million. Under the rules of baseball arbitration, the arbitrators had to pick one proposal or the other — splitting the difference isn’t permitted.

For a very interesting account of the arbitration procedure in Hart’s case, see:

http://mlb.mlb.com

Contact Steve Lagoy for more information on how the arbitration process can help you and your business.

By: Stephen P. Lagoy

General Motors is prepared to proceed with a Congressionally-mandated program that will allow 2000 of GM’s closed dealerships to appeal the closure decision through an independent arbitration process. Dealers who want to file for reinstatement must do so through the American Arbitration Association and commence arbitration by Jan. 25. Under the law, decisions must generally be made by June 14. To read more about this arbitration process, see

http://www.detnews.com/20100108 and http://www.detnews.com/20100109

For information on how arbitration can help you, please contact Stephen P. Lagoy.

By: Donald C. Turner

Was your dealership terminated by GM/Chrysler?

The United States Congress, as part of a $1.1 trillion spending bill, has voted to give terminated General Motors and Chrysler dealers the right to challenge their terminations through arbitration. This legislation requires the arbitrator to balance the economic interest of the covered dealership against the economic interest of the manufacturer and the public at large and, on the basis of this balancing, to determine whether the dealership should remain open. Among other things, the arbitrator is to consider the dealer’s profitability over the period 2006 through 2009, the manufacturer’s overall business plan, the dealership’s current economic viability, its satisfaction of the manufacturer’s performance objectives, the length of experience of the covered dealership, and the demographic and geographic characteristics of the dealership’s market territory. Dealers electing to arbitrate must make a decision to do so within 40 days of the effective date of the Act. The Act became effective on December 16, 2009 and therefore the election to arbitrate must be made no later than January 22, 2010 (The 40-day period ends on Sunday, January 24, 2010 so to be safe, the arbitration should be requested no later than Friday, January 22, 2010). As a result, the dealer should, at this time, commence compilation of the evidence and documentation to support why it should be allowed to continue operations.

This arbitration is to be conducted by arbitrators with the American Arbitration Association and will be conducted in a quasi-judicial proceeding. As a result, careful planning and competent counsel (with automotive and arbitration experience) will be critical to success in these arbitrations, please contact if you are an affected dealer, Don Turner to discuss your options.

Also, see an earlier post on the car dealer arbitration process.

By: Stephen P. Lagoy

At this time of year, sports pages are filled with articles about whether or not major league baseball teams have “offered arbitration” to their free agent players. What does this mean and what are the implications of the decision? For a primer on this subject, see http://bats.blogs.nytimes.com/2009/12/01/the-arbitration-decision/. For a discussion of the concept of “baseball arbitration”, see our previous blog entry here.

Please contact Stephen P. Lagoy for more information on ways the arbitration process can help you.

By: Stephen P. Lagoy

The President has signed into law a program giving closed auto dealerships access to neutral arbitration if they want to be reinstated. The process begins immediately and is expected to take six and one half months. For more information on how the auto dealer arbitration process will work see:

http://www.autonews.com/article/

For more information on how the arbitration process can work for you and your business, please contact our office.

By: Stephen P. Lagoy

Congress has approved a plan that would allow 2000 terminated car dealers to pursue third party mediation and arbitration with GM and Chrysler with the possibility of being reinstated. For an analysis of this alternative dispute resolution process and its chances of being successful, see http://online.wsj.com/article/.

For more information how mediation and arbitration can work for your business, please contact Stephen P. Lagoy.

Stephen P. Lagoy is an attorney practicing in West Chester, PA. He is a member of the Association for Conflict Resolution and the PA Council of Mediators.

By: Stephen P. Lagoy

At this time of year, sports pages are filled with articles about whether or not major league baseball teams have “offered arbitration” to their free agent players.   What does this mean and what are the implications of the decision?  For a primer on this subject, see http://bats.blogs.nytimes.com/2009/12/01/the-arbitration-decision/. For a discussion of the concept of “baseball arbitration”, see our previous blog about arbitration in the Major League here.

For more information, contact our office.

By: Stephen P. Lagoy

An insurance industry group will experiment with an expedited form of binding arbitration designed for small, uncomplicated disputes. The Association of Insurance and Reinsurance Run-Off Companies has announced the development of a new streamlined dispute resolution procedure the elements of which include a single arbitrator, discounted fee structure, and no discovery or hearing testimony without consent of the parties. The arbitrator must issue a decision within 30 days after the close of evidence.

To read more about this streamlined process, see http://www.businessinsurance.com

For more information, please contact our office.

By: Nancy J. Glidden

Many litigants and counsel may not be aware that a process for alternate dispute resolution exists in the Superior Court during the pendency of an appeal. The Pennsylvania Superior Court has an “Appellate Mediation Program.” The Program provides a potential means for resolving disputes that is faster, more economical, and more likely to result in a satisfactory outcome than would otherwise be the case with a full appeal. Certain civil, family-related and Orphans’ Court matters may be particularly well-suited for resolution through mediation. If selected for mediation, the process occurs during the pre-briefing phase of the appeal. To learn more about the Program and the process for having a matter submitted to mediation please refer to this article or contact Nancy J. Glidden.