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October 16 myLawCLE Webinar: Start in Arbitration, Finish in Court: The Sexual Harassment Plaintiff’s Election to Litigate

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Philip J. Loree Jr., Richard D. Faulkner, and Charles (“Chuck”) Bennett will Discuss the EFAA’s Application and Effect in an October 16, 2026, myLawCLE Webinar

What may result from the EFAA's application -- A Lawsuit, not an arbitration. . . . On October 16, 2026, I will be joining my good friends and colleagues Richard D. Faulkner of Faulkner ADR Law and Charles (“Chuck”) Bennett of Bennett Legal for a two-hour live myLawCLE webinar, which discusses the EFAA’s application and effect:  Start in Arbitration, Finish in Court: The Sexual Harassment Plaintiff’s Election to Litigate. The program begins at 2:30 p.m. Eastern and focuses on one of the most important practical consequences of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”): when, and how, a claimant who would otherwise be required to arbitrate may elect instead to litigate in court. That election to litigate may include not only sexual harassment and sexual assault disputes, but all otherwise arbitrable claims that are part of the same case.

The EFAA, codified as Chapter 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 401-402, gives persons alleging covered sexual-harassment or sexual-assault disputes a post-dispute choice that did not exist under the ordinary FAA regime. But identifying that choice is only the beginning. The statute has generated substantial litigation over when a covered dispute arises or accrues, what qualifies as a covered dispute, who decides those questions, how broadly the election extends in a mixed-claim case, and what happens when arbitration has already begun.

We have previously discussed the EFAA’s structure in a practical Arbitration Law Forum overview and examined the Sixth Circuit’s entire-case ruling in Bruce v. Adams & Reese. The October 16 program builds on those discussions and approaches the subject from both claimant-side and employer-side perspectives.

Part I: When a Sexual Harassment Plaintiff Can Still Elect Court Over Arbitration

The first segment, When a Sexual Harassment Plaintiff Can Still Elect Court Over Arbitration, addresses the threshold coverage questions.

We will begin with the statute itself: what constitutes a “predispute arbitration agreement” or “predispute joint-action waiver”; what counts as a “sexual harassment dispute” or “sexual assault dispute”; and how Section 402(b) assigns questions about the EFAA’s  applicability to courts even when an arbitration agreement contains a delegation clause, and even if such an arbitral determination might be authorized by the doctrine of separability. We will also discuss the statute’s March 3, 2022 effective-date limitation and the developing case law concerning when a dispute “arises” or a claim “accrues.”

A central issue is the EFAA’s use of the word “case.” In Bruce v. Adams & Reese, LLP, 168 F.4th 367 (6th Cir. 2026), the Sixth Circuit held that a plausibly pleaded sexual-harassment dispute could render a predispute arbitration agreement unenforceable as to the entire case, including claims that otherwise would have been arbitrable. The Ninth Circuit subsequently reached the same basic conclusion in a different procedural context in Ding Ding v. Structure Therapeutics, Inc., No. 25-1532, slip op. (9th Cir. Aug. 19, 2026).

That entire-case rule substantially raises the stakes of the threshold pleading fight. If the claimant adequately alleges a covered dispute, the forum for all properly joined claims may turn on that one issue. If the alleged covered dispute fails at the pleading stage, however, the remaining claims may still be subject to arbitration. We will examine what the cases say about that distinction and what it means in practice.

Part II: Executing the Arbitration Exit in a Sexual Harassment Case

The second segment, Executing the Arbitration Exit in a Sexual Harassment Case, moves from coverage to the EFAA’s application. Section 402(a) speaks in terms of an “election,” but it does not prescribe a form of notice, a special deadline, a required pleading mechanism, or a detailed process for leaving an arbitration that is already underway. Those omissions make execution of the EFAA’s election a practical lawyering problem.

For claimants, we will discuss how to make the election explicit; how to plead the covered dispute with the anticipated motion to compel in mind; how to establish the relationship between the covered dispute and the rest of the case; and how to document timing and knowledge when facts supporting an EFAA claim emerge only after arbitration has begun.

Ding Ding is particularly important on that last point. The Ninth Circuit held that a claimant who initially arbitrated claims that did not allege sexual harassment was not necessarily locked into arbitration after later discovering facts supporting a covered sex-based harassment claim within the EFAA’s ambit. But the court also recognized that ordinary waiver principles remain relevant. The practical question therefore becomes what the claimant knew, when the claimant knew it, and whether the claimant intentionally chose to arbitrate a known EFAA-covered dispute.

We will examine the same problems from the employer’s side. An employer confronting an EFAA election must decide quickly whether a dispute alleged to be within the EFAA’s coverage can be challenged at the pleading stage, whether a waiver argument is available, how to preserve arbitration rights while litigating the threshold issue of the EFAA’s applicability, and whether severance or relatedness arguments have any realistic force under the emerging entire-case rule.

The program will also use Puris v. TikTok as a vehicle for discussing harder boundary questions, including third-party harassment, employer responsibility, retaliation, and sex-based hostile-environment allegations that may not involve overtly sexual conduct. Puris is pending before the Second Circuit, and we’ve got our eyes open for a decision that might be handed down any day now.

Why the EFAA’s Provisions Are of Interest to both the Employment and Arbitration Bars

The EFAA’s provisions are short and few but its procedural consequences are significant. It can override otherwise enforceable predispute arbitration agreements, displace delegation provisions and the doctrine of separability and determine the forum for an entire employment case. Recent appellate decisions have moved the law forward quickly, but they also make clear that outcomes may depend on pleading, timing, waiver, motion sequencing, and the substantive harassment law incorporated into the EFAA’s definitions.

Our goal on October 16 is to provide a practical framework for analyzing those issues, which can be procedural traps for the unwary. We hope the program will be useful to arbitration practitioners, employment lawyers, in-house counsel, and others who may have to determine whether a dispute that appears headed for arbitration can – or must – finish in court.

The program is live on October 16, 2026, at 2:30 p.m. Eastern and offers two hours of CLE credit. Additional information and registration are available on the myLawCLE program page.

Chuck, Rick, and I would like to thank Mishelle Villatoro, myLawCLE’s CLE Program Development Specialist for organizing and coordinating the program, and John Holloway, the CEO of myLawCLE, for inviting the three of us to speak.

Contacting the Author

If you have any questions about this article, arbitration, arbitration law, or arbitration-related litigation, then you may contact the author, Philip J. Loree Jr. at (516) 941-6094 or PJL1@LoreeLawFirm.com.

Philip J. Loree Jr. is principal of the Loree Law Firm, a New York attorney who focuses his practice on arbitration and associated litigation. A former BigLaw partner, he has more than 35 years of experience representing a wide variety of domestic and international corporate, other entity, and individual clients in trial-court and appellate matters arising under the Federal Arbitration Act – including matters arising under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. He also has significant experience arbitrating and litigating insurance- and reinsurance-related and other commercial disputes, and in advising clients and co-counsel in arbitration-law-related matters.

ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.

Photo Acknowledgment

The photo featured in this post was licensed from Yay Images and is subject to copyright protection under applicable law.

Loree Reinsurance and Arbitration Law Forum Nominated for Inclusion in LexisNexis Insurance Law Community’s Top 50 Insurance Law Blogs!

June 27th, 2010 ADR Social Media, Claims Spot, General Comments Off on Loree Reinsurance and Arbitration Law Forum Nominated for Inclusion in LexisNexis Insurance Law Community’s Top 50 Insurance Law Blogs!

This blog, along with several other insurance-law-related blogs, has been nominated for inclusion in LexisNexis Insurance Law Community’s Top 50 Insurance Law Blogs.  But we haven’t made the final cut yet — LexisNexis will select the winners after a comment period that ends this June 30, 2010. 

According to the post announcing the initial nominees (here):

As many of you know, there are blogs, and then there are blogs. When we consider a blog for membership in ILC’s annual Top 50, we look for frequent posts, timely topics, and quality writing. Only the best may gain admission. Our readers have come to expect nothing less, and we wouldn’t have it any other way.  (emphasis in original)

If you read and enjoy the Loree Reinsurance and Arbitration Law Forum, we would be grateful if you would post a comment at the LexisNexis Insurance Law Community site recommending us for inclusion in the final Top 50 list.  Instructions on how to do so are here. 

We also note that our good friend Marc Lanzkowsky’s blog, The Claims SPOT, was included in the initial list of nominees.  If you are not already familiar with Marc’s blog, then we urge you to check it out, because we think you’ll like what you see.  And whether or not you are already familiar with Marc’s blog, if you share our view that it should be included in the final top 50 list, then please be sure to let LexisNexis know here.

Many thanks to all of our readers for your continued support!

EDITOR’S NOTE:  LexisNexis has advised us that the comment period has now been extended to July 9, 2010. 

The Great Debate Over Written Claims Guidelines and Procedures

February 18th, 2010 Asbestos-Related Claims, Bad Faith, Claims Guidelines and Procedures, Claims Handling, Claims Spot, Environmental Contamination Claims, Internal Controls, Late Notice, Reinsurance Claims, Utmost Good Faith 1 Comment »

Our friend and fellow Long Islander Marc Lanzkowsky, Founder and Principal of Lanzko Consulting, Inc., recently launched the blog Claims Spot, which discusses and comments on direct, excess and reinsurance-related claims issues.  Marc has done a great job with Claims Spot and, not surprisingly, his blog is drawing some heavy traffic. 

A controversial issue that Marc has been covering is whether or not insurance companies should have in place written claims guidelines and procedures.  One school of thought is fearful of their use (or abuse) by insureds in coverage actions.  For example, a company employee might mistakenly not follow written guidelines and procedures in the course of handling a claim, and a dispute might arise as a result.  The insured will legitimately be able to argue  that the company’s handling of the claim did not comply with its own guidelines and procedures, and that, accordingly, the company mishandled the claim.  Proponents of this view will say that having claims guidelines and procedures is fine as long as they are merely aspirational and not in writing. 

Others advocate the “damned if you do, damned if you don’t” view.  If a large, professional insurer has no written guidelines and procedures, then the insured’s refrain in a coverage or bad faith action will be that the company is grossly negligent because it lacks the internal or external controls necessary to regulate a very significant portion of its business operations.   But if the company has written claims guidelines and procedures, then surely they will come back to haunt it in the event of litigation.  

Others, including Marc, believe the benefits associated with well-drafted and carefully considered claims guidelines and procedures outweigh the costs associated with formulating and implementing them, and, more importantly, whatever costs might be incurred by the insured’s potential use or abuse of the procedures in the event of a dispute.  Drawing on his experience as a lawyer and a claims executive for two major insurance companies, Marc offers assistance to companies that are interested in implementing written claims guidelines and procedures or improving existing ones. 

Marc recently brought the discussion up to the reinsurance level in his post, “Absence of Procedures to Notify Reinsurance is a Basis for Bad Faith.”   He was kind enough to mention what inspired his thoughtful post — an interesting discussion he and I had about the subject not long ago over a delicious sushi and bento box lunch at Misaki — Manhasset, New York’s best (and only) Japanese restaurant. 

As Marc points out there has been law in the Second Circuit for some time stating that a ceding company’s failure to have in place procedures for notifying reinsurers of claims can constitute bad faith, which may relieve a reinsurer of liability for a late-noticed claim without any showing of prejudice.    That is a pretty good argument for having in place written, ceded-claims handling procedures designed to ensure timely notice to reinsurers.    

In the reinsurance-late-notice context the cost-benefit analysis is probably less challenging than it might be in the direct-insurance-bad-faith context.  If the ceding company does not have in place written guidelines and procedures, and cannot establish by credible and consistent testimony the existence of unwritten guidelines and procedures, then, at least in a case pending in court (as opposed to arbitration), the reinsurer may get a “pass” on a claim based on late notice without any showing of prejudice.  (Prejudice has been defined as “tangible economic injury.”)

On the other hand, if the ceding company has written procedures in place, but they are not followed in a given case, then that, in conjunction with other evidence, may establish that notice was late.  But the reinsurer still has to show prejudice to be relieved of liability.   

So in our hypothetical, counsel for the reinsurer may be able to make some hay at a deposition concerning the cedent’s failure to follow its own guidelines and procedures.  But points scored at depositions can be (and in this case are) ephemeral:  without evidence of prejudice, failure to comply with the guidelines is, for all practical purposes, irrelevant.  

In this day and age of internal controls and corporate responsibility, it seems to us that appropriate written claims guidelines and procedures can benefit insurers, cedents and reinsurers, provided they are carefully drafted, implemented and managed.  We offer the following, very general and non-exclusive list of things companies might consider:   

1.  If written claims procedures are to be adopted and implemented they should be carefully prepared by claims experts and reviewed by experienced counsel.   Poorly drafted and ill-conceived written claims procedures are probably worse than none at all. 

2. Careful thought should be given to privilege issues associated with in-house or outside attorney review of draft guidelines and the involvement of counsel in other aspects of the drafting and implementation process.   The process should be carefully managed and attention should be paid to the company’s document retention policies as respects the maintenance or destruction of drafts.   Remember, in a future litigation or arbitration the insured’s attorneys will likely request prior drafts and depositions of all involved in the preparation and implementation process.  While the insured may or may not be successful in obtaining all the discovery it seeks, it will likely get at least some of it.  

3.  Written claims procedures should be drafted to confer upon claims personnel an appropriate degree of discretion where such discretion is appropriate.   Locking adjusters into particular claims positions without regard to the facts, circumstances and practical realities can cause a myriad of problems. 

4.  To the extent claims procedures provide a certain period of time within which a particular action must be taken, and to the extent that the period is not an inflexible one provided by law or contract, flexibility should be built in to account for minor delays caused by special circumstances or the press of business.   

5.  If written claims guidelines and procedures are to be adopted, the company should ensure claims personnel take them very seriously and do their best to abide by them at all times.   

6.  Written claims procedures should be subject to periodic review by in-house counsel and the claims department to ensure that they comply with current legislation and recent case law developments. 

7.  Outside counsel handling coverage or other, claims-related matters for the company should keep the company’s general counsel apprised of any problems that might be caused or exacerbated by written guidelines and procedures.