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CPR Interviews Downes, Faulkner & Loree About Recent SCOTUS Developments

December 8th, 2021 Amount in Controversy, Appellate Practice, Application to Compel Arbitration, Application to Stay Litigation, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Contract Defenses, CPR Speaks Blog of the CPR Institute, Diversity Jurisdiction, Equal Footing Principle, FAA Chapter 1, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Federal Courts, Federal Question, International Arbitration, International Institute for Conflict Prevention and Resolution (CPR), International Judicial Assistance, Laches, Loree and Faulkner Interviews, Moses Cone Principle, Nuts & Bolts, Nuts & Bolts: Arbitration, Petition to Compel Arbitration, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Section 3 Stay of Litigation, Small Business B-2-B Arbitration, Stay of Litigation, Stay of Litigation Pending Arbitration, Subject Matter Jurisdiction, United States Supreme Court, Waiver of Arbitration Comments Off on CPR Interviews Downes, Faulkner & Loree About Recent SCOTUS Developments

Steps and columns on the portico of the United States Supreme Court in Washington, DC.

Arbitration is an important topic this year at the U.S. Supreme Court (“SCOTUS”). On Monday, November 23, 2021 the International Institute of Conflict Protection and Resolution (“CPR”) conducted a video interview of Professor Angela Downes,  Assistant Director of Experiential Education and Professor of Practice Law at the University of North Texas-Dallas College of Law; Dallas-based arbitrator, attorney, and former judge Richard D. Faulkner, Esq.;  and Loree Law Firm principal Philip J. Loree Jr. about three recent SCOTUS arbitration-law developments. To watch and listen to the video-conference interview, CLICK HERE or HERE.

As reported in CPR’s blog, CPR Speaks, the three SCOTUS arbitration-law developments are:

1. SCOTUS’s recent decision to Grant Certiorari in Morgan v. Sundance Inc., No. 21-328, which will address the question: “Does the arbitration specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court’s instruction that lower courts must ‘place arbitration agreements on an equal footing with other contracts?’” Morgan v. Sundance, Inc., No. 21-328, Petition for a Writ of Certiorari (the “Petition”), Question Presented (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). (See SCOTUS Docket here for more information and copies of papers.) Prior to SCOTUS granting certiorari, we discussed the Morgan petition in detail here.
2. Two SCOTUS petitions for certiorari that address the issue whether, for purposes of 28 U.S.C. 1782’s judicial-assistance provisions, an arbitration panel sited abroad is a “foreign or international tribunal” for purposes of the statute, which permits “any interested person” to seek U.S. judicial assistance to obtain evidence in the U.S. for use abroad. These petitions are AlixPartners LLP v. The Fund for Protection of Investors’ Rights in Foreign States, No. 21-518, and ZF Automotive US Inc. v. Luxshare Ltd., No. 21-401. Information about these cases is available at Bryanna Rainwater, “The Law on Evidence for Foreign Arbitrations Returns to the Supreme Court,” CPR Speaks(Oct. 22, 2021) (available here) and “CPR Asks Supreme Court to Consider Another Foreign Tribunal Evidence Case,” CPR Speaks (Nov. 12, 2021) (available here).
3. Badgerow v. Walters, No. 20-1143, a recently-argued SCOTUS case that presents the question “[w]hether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the FAA where the only basis for jurisdiction is that the underlying dispute involved a federal question.” See id., Question Presented Report, here. The case was argued before SCOTUS on November 2, 2021, and you can listen to the oral argument here. The oral argument is discussed in Russ Bleemer, “Supreme Court Hears Badgerow, and Leans to Allowing Federal Courts to Broadly Decide on Arbitration Awards and Challenges,” CPR Speaks (November 2, 2021) (available here).

Our good friend Russ Bleemer, Editor of CPR’s newsletter, Alternatives to the High Cost of Litigation, did a fantastic job conducting the interview.

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Waiver of Arbitration: Will the U.S. Supreme Court Resolve the Circuit Split Concerning Prejudice?

September 28th, 2021 Application to Compel Arbitration, Application to Stay Litigation, Arbitration Law, Arbitration Practice and Procedure, Equal Footing Principle, Estoppel, FAA Chapter 1, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Federal Policy in Favor of Arbitration, Gateway Disputes, Gateway Questions, Laches, Nuts & Bolts: Arbitration, Practice and Procedure, Prejudice, Section 3 Stay of Litigation, Small Business B-2-B Arbitration, Stay of Litigation, Stay of Litigation Pending Arbitration, United States Supreme Court, Waiver of Arbitration 1 Comment »

Waiver of Arbitration based on Litigation-Related Conduct

United States Supreme Court

Whether an arbitration challenger must show prejudice to establish waiver of arbitration based on litigation-related conduct is an issue that might be the subject of a United States Supreme Court opinion in the not too distant future.

Federal Arbitration Act (“FAA”) Section 3 authorizes a stay of litigation in favor of arbitration “providing the applicant for the stay is not in default in proceeding with . . . arbitration.” 9 U.S.C. § 3 (emphasis added). The most common application of the “not in default” language occurs when a defendant in a lawsuit delays seeking a Section 3 stay and litigates on the merits. See, generally, Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 217-19 (3d Cir. 2007); Doctor’s Associates, Inc. v. Distajo, 66 F.3d 438, 454-56 (2d Cir. 1995).

Defending the suit on the merits—rather than seeking a stay of litigation and moving to compel arbitration—is inconsistent with arbitration and at some point constitutes at least an implied rejection or abandonment of the right to arbitrate. Section 3’s “not in default” condition authorizes a plaintiff resisting a stay to assert that the defendant has waived its right to arbitrate. 9 U.S.C. § 3; see 482 F.3d at 218; 66 F.3d at 454-56.

We discussed waiver of arbitration based on litigation-related conduct in a prior post, here. Under general principles of contract law, waiver is the “intentional relinquishment of a known right.” See, e.g., Professional Staff Congress-City University v. New York State Public Employment Relations Board, 7 N.Y.3d 458, 465 (2006) (“A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. . . . Such a waiver must be clear, unmistakable and without ambiguity”) (citations and quotations omitted).

Waiver may be established by demonstrating that a party renounced or abandoned contract rights, whether by its representations or other conduct inconsistent with an intent to assert those rights. See, e.g., Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt, L.P., 7 N.Y.3d 96, 104 (2006).

It focuses solely on the conduct of the party charged with waiver—it does not require any showing that the other party detrimentally relied on the conduct or otherwise suffered any prejudice. See, e.g., United Commodities-Greece v. Fidelity Int’l Bank, 64 N.Y.2d 449, 456-57 (1985); Fundamental Portfolio Advisors, 7 N.Y.3d at 104, 106-07; Albert J. Schiff Assoc. v. Flack, 51 N.Y.2d 692, 698-99 (1980).

The concept that another’s untimely assertion of a right has prejudiced a person is central to the equitable doctrine of laches, not waiver. See Capruso v. Village of Kings Point, 23 N.Y. 3d 631, 641 (2014) (“Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. The essential element of this equitable defense is delay prejudicial to the opposing party.”) (citations and quotations omitted).

Prejudice is also an element required to establish estoppel, which is an equitable bar to enforcement of a contract right. See, e.g., Schiff Assoc., 51 N.Y.2d at 699 (“Distinguished from waiver, of course, is the intervention of principles of equitable estoppel, in an appropriate case, such as where an insurer, though in fact not obligated to provide coverage, without asserting policy defenses or reserving the privilege to do so, undertakes the defense of the case, in reliance on which the insured suffers the detriment of losing the right to control its own defense.”)

Waiver: The Circuit Split on Prejudice

There is a split in the circuits concerning whether a party opposing a stay must not only demonstrate litigation-related conduct inconsistent with arbitration to establish waiver but must also establish prejudice.

Most circuit courts of appeals have determined that prejudice is required to establish waiver of arbitration based on litigation-related conduct. See Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); Gavlik Constr. Co. v. H. F. Campbell Co., 526 F.2d 777, 783-84 (3d Cir. 1975), overruled on other grounds by Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988); Carolina Throwing Co. v. S & E Novelty Corp., 442 F.2d 329, 331 (4th Cir. 1971); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986); O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 356 (6th Cir. 2003); Stifel, Nicolaus & Co. v. Freeman, 924 F.2d 157, 158 (8th Cir. 1991); ATSA of Cal., Inc. v. Cont’l Ins. Co., 702 F.2d 172, 175 (9th Cir. 1983); S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir. 1990); see also Joca-Roca Real Estate, LLC v. Brennan, 772 F.3d 945, 949 (1st Cir. 2014) (prejudice requirement is “tame at best”).

Courts frequently cite the FAA’s federal policy favoring arbitration as justifying a prejudice requirement for waiver. See, e.g., Stifel, Nicolaus & Co., 924 F.2d at 158 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Other circuit courts do not require prejudice. See St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir. 1992); Nat’l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987).

State supreme courts are also split.  Compare, e.g., St. Agnes Med. Ctr. v. PacifiCare of Cal., 82 P.3d 727, 738 (Cal. 2003) (prejudice required under state arbitration law); Advest, Inc. v. Wachtel, 668 A.2d 367, 372 (Conn. 1995) (prejudice required; following Second Circuit authority) with Hudson v. Citibank (S.D.) NA, 387 P.3d 42, 47-49 (Alaska 2016) (prejudice not required under federal law); Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005) (prejudice not required under federal law);  Cain v. Midland Funding, LLC, 156 A.3d 807, 819 (Md. 2017) (prejudice not required under state law).

The Morgan SCOTUS Petition: Waiver, Prejudice, and the “Equal Footing” Principle

This raises an important question concerning FAA Section 2’s “equal footing principle,” which has been presented to the Supreme Court in a recent petition for certiorari: “Does the arbitration specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court’s instruction that lower courts must ‘place arbitration agreements on an equal footing with other contracts?’” Morgan v. Sundance, Inc., No. 21-328, Petition for a Writ of Certiorari (the “Petition”), Question Presented (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). (See SCOTUS Docket here for more information and copies of papers.) Opposition papers are due on October 1, 2021, which means that the Court may grant or deny the petition before the end of 2021.

The question is a substantial one since the purpose of “savings clause” of FAA Section 2 “was to make arbitration agreements as enforceable as other contracts, but not more so.” See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12 (1967). FAA Section 2’s “savings clause” provides that arbitration agreements falling under the FAA “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

Courts that require prejudice to establish waiver are arguably making arbitration agreements more enforceable than ordinary contracts. And that may violate the “equal footing” principle.

Back in 2011 the Supreme Court granted a petition for certiorari seeking review of essentially the same question, but the parties settled the case before it was fully submitted and SCOTUS dismissed it as moot without reaching the merits. Citibank, N.A. v. Stok & Assocs., P.A., 387 F. App’x 921 (11th Cir. 2010), cert. granted, 562 U.S. 1215 (2011), cert. dismissed, 563 U.S. 1029 (2011) (See SCOTUS Docket here.)

Morgan v. Sundance, Inc., presents another opportunity for the Court to resolve the circuit and state supreme court conflicts on litigation-conduct-related waiver. As set forth in the comprehensive and well-written petition, Morgan presents a good vehicle for SCOTUS to resolve a long-standing (and deep) circuit/state-supreme-court conflict, which continues to be worthy of review.

If the Supreme Court grants certiorari; reverses the U.S. Court of Appeals for the Eighth Circuit’s decision, which required the plaintiff to show prejudice; and holds that prejudice is not required to establish waiver, then parties who wish to demand arbitration after being named a defendant in a litigation will need to move promptly to stay litigation and compel arbitration or risk losing the right to do so. While that might create some enforcement risks for parties who wish to arbitrate, it may also reduce, or at least streamline, FAA enforcement proceedings concerning litigation-related-conduct-based waiver.

Contacting the Author

If you have any questions about arbitration, arbitration-law, arbitration-related litigation, or this article, or if you wish to discuss possibly retaining the Loree Law Firm to provide legal advice or other legal representation, please contact the author, Philip Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

Philip J. Loree Jr. has more than 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation.

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

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CPR Speaks Publishes Philip J. Loree Jr.’s Post on Schein’s Return to the U.S. Supreme Court

February 20th, 2020 Arbitrability, Arbitrability | Clear and Unmistakable Rule, CPR Speaks Blog of the CPR Institute, Delegation Agreements, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Gateway Disputes, Gateway Questions, International Institute for Conflict Prevention and Resolution (CPR), Loree & Loree, Questions of Arbitrability, Section 3 Stay of Litigation, Separability, Stay of Litigation, Stay of Litigation Pending Arbitration, United States Court of Appeals for the Fifth Circuit, United States Supreme Court 2 Comments »

If you’ve been following our posts on Henry Schein Inc. v. Archer & White Sales Inc., 139 S. Ct. 524 (Jan. 8, 2019) (available at ) (“Schein I”), and the U.S. Court of Appeals for the Fifth Circuit decision on remand, Archer and White Sales Inc. v. Henry Schein Inc., 935 F.3d 274 (5th Cir. 2019) (available at ) (“Schein II”), then you know that the arbitration proponent, Henry Schein, Inc. (“Schein”), petitioned for rehearing en banc. (See here, here, here, and here.)

Well, unfortunately, the Fifth Circuit denied that petition on December 6, 2019. But apparently Schein was at least as disappointed with that ruling as we were, and so Schein filed on January 30, 2020 a petition for certiorari, asking the U.S. Supreme Court to review the Fifth Circuit’s Schein II ruling. A copy of the Petition is here.

We were delighted—not because we get to write still more articles and posts about Schein I and Schein II, but because, with all due respect to the Fifth Circuit, we think that Schein II was wrongly decided, and that consequently, Schein has been denied the benefit of the arbitration agreement and Delegation Agreement for which it freely bargained. And we hope that the U.S. Supreme Court grants Schein’s petition, reverses the Fifth Circuit decision, and directs the Fifth Circuit to compel arbitration of the parties’ arbitrability dispute as required by the parties’ Delegation Agreement.

On February 19, 2020, our friends at CPR Speaks, the blog of the International Institute for Conflict Prevention and Resolution (“CPR”), published a post we authored about this development, entitled Schein Returns: Scotus’s Arbitration Remand Is Now Back at the Court, which you can review here.

The post discusses the background of Schein I and Schein II, the events leading up to the petition for certiorari, some of the reasons why we believe Schein II was wrongly decided, and how we believe that it should be decided if SCOTUS grants the petition.

Many thanks to our good friend, Russ Bleemer—a New York attorney who is the editor of CPR’s Alternatives, an international ADR newsletter published by John Wiley & Sons, Inc., for his very helpful edits. And a shout-out also to CPR’s Tania Zamorsky, who, among other things, is the blog master of CPR Speaks.

About the Author

Philip J. Loree Jr. is a partner and founding member of Loree & Loree. He has nearly 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation. He is a former partner of the litigation departments of the New York City firms of Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP (now known as Katten Munchin Rosenman LLP).

Loree & Loree represents private and government-owned-or-controlled business organizations, and persons acting in their individual or representative capacities, and often serves as co-counsel, local counsel or legal adviser to other domestic and international law firms requiring assistance or support.

You can contact Phil Loree Jr. at (516) 941-6094 or at PJL1@LoreeLawFirm.com.

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Stay of Litigation | Waiver of Arbitration | The Businessperson’s Federal Arbitration Act FAQ Guide III | Pre-Award Litigation under Chapter 1 of the Federal Arbitration Act | Litigating Gateway Disputes | The Nuts and Bolts of Pre-Award Federal Arbitration Act Practice under Sections 2, 3, and 4 (Part I)

February 16th, 2020 Arbitrability, Arbitrability | Clear and Unmistakable Rule, Arbitration and Mediation FAQs, Arbitration Law, Arbitration Practice and Procedure, Businessperson's FAQ Guide to the Federal Arbitration Act, Challenging Arbitration Agreements, FAA Chapter 1, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Gateway Disputes, Gateway Questions, Moses Cone Principle, Nuts & Bolts, Nuts & Bolts: Arbitration, Practice and Procedure, Questions of Arbitrability, Section 3 Stay of Litigation, Small Business B-2-B Arbitration, Stay of Litigation, Stay of Litigation Pending Arbitration, United States Court of Appeals for the Second Circuit, United States Court of Appeals for the Seventh Circuit 2 Comments »

Today we’re going to focus on Section 3 of the Federal Arbitration Act, which authorizes a Court to stay litigation.

In the last segment of this series we answered the following FAQs about how gateway disputes are decided by courts and arbitrators:

1. What is the Presumption of Arbitrability?
2. Does the Presumption of Arbitrability Apply to all Questions of Arbitrability?
3. What Law Applies to Determine Gateway Disputes about Arbitrability to which the Presumption of Arbitrability does not Apply?
4. How is the Presumption of Arbitrability Applied to Resolve Gateway Questions about the Scope of an Arbitration Agreement?
5. What Defenses, if any, Can Parties Assert against Enforcement of an Arbitration Agreement, and what Law Governs these Defenses?

The answers to these questions, along with those provided in prior segments, were designed to provide you with a solid foundation for understanding how pre-award Federal Arbitration Act litigation works and what to expect if your business is or becomes embroiled in it.

The segment of which this post is Part I answers FAQs about the nuts and bolts of pre-award Federal Arbitration Act practice and procedure under Sections 2, 3, and 4 of the Act, the Sections that address gateway disputes about whether arbitration should proceed.

In this Part I we address the following FAQs, which focus on Section 3 stays of litigation:

1. What Gateway Disputes do Sections 2, 3, and 4, Address, and How do they Address them?  
2. How does Section 3 Work in Practice?

Future parts of this segment will address questions concerning Section 4 of the Federal Arbitration Act, which authorizes courts to compel arbitration. And we’ll move forward from there.

What Gateway Disputes do Sections 2, 3, and 4, Address, and How do they Address them?   

Section 2, as we’ve said, is the enforcement command of the Federal Arbitration Act, which deems all arbitration agreements falling within its scope to be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. (See here and here.) Section 2 requires, as a matter of federal law, that arbitration agreements falling within its scope are to be enforced to the same extent as contracts generally. (See here.)  

But the Federal Arbitration Act does more than require the enforcement of arbitration agreements by putting them on “an equal footing with all other contracts.” Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017) (quotations and citations omitted). It provides for specific performance of arbitration agreements, both in the form of an order staying litigation of an arbitrable controversy under Section 3 of the FAA, and an order directing a party to proceed with arbitration in accordance with their agreement. 9 U.S.C. §§ 3 & 4.

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