Eversheds Sutherland 11th Circuit Business Blog
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“Gateway” Issue Delegation to an Arbitrator is Enforceable, Without Qualifications; Circuit Split Noted

The Eleventh Circuit enforced an employment-related arbitration agreement’s provision delegating to the arbitrator “gateway” questions of arbitrability in Jones v. Waffle House, Inc., 2017 WL 3381100 (11th Cir. Aug. 7, 2017).  The opinion, written by Judge Marcus and joined by Judge Hull and Judge Clevenger visiting from the Federal Circuit, also rejects the notion, adopted by the...

Court Rules Question of Arbitral Venue Presumptively for Arbitrator to Decide

In an international arbitration dispute between an Israeli company (“Profimex”) and an American business (“OAD”) incorporated in the state of Georgia, the Eleventh Circuit ruled this week “that questions of arbitral venue, even those arising in international arbitration, are presumptively for the arbitrator to decide.” Bamberger Rosenheim, Ltd., (Israel) (“Profimex”) v. OA Development,...

Employee Waived Jury Trial on Formation of Arbitration Agreement

  The Eleventh Circuit labored to disentangle a procedural morass in Burch v. P.J. Cheese, Inc., 2017 WL 2885095 (11th Cir. July 7, 2017), ultimately holding that the plaintiff, a former employee alleging violations of a raft of federal employment laws, failed to perfect his right to a jury trial on the existence of an arbitration agreement between him and the defendant employer. ...

Kardashians Left Blushing, Can’t Compel Arbitration in Makeup Case

Kimberly, Kourtney, and Khloe Kardashian will find themselves back in court after the Eleventh Circuit affirmed the denial of their motion to compel arbitration in Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., No. 15-15060 (11th Cir. Jan. 18, 2017). The Kardashians sought to enforce an arbitration clause against a party to the underlying contract despite the fact that...

Tribal Arbitration Agreement in Payday Loan Not Enforced

An arbitration provision in a payday loan agreement was held unenforceable because the provision’s exclusive designated arbitrator, the Cheyenne River Sioux Tribal Nation, was unavailable and no substitute could be appointed. Parm v. Nat’l Bank of Cal., N.A., 2016 WL 4501661 (11th Cir. Aug. 29, 2016) (Dubina, J.). The lender, Western Sky Financial, conceded that the designated...

Statutory Non-Waiver Provision Does Not Prevent Severance of Unlawful Terms and Arbitration Enforcement

Where an arbitration provision includes substantive limitations on the relief otherwise available to a party under a federal statute, there are three possible judicial responses: sever the offending provisions and enforce the agreement; enforce the agreement and leave any invalidity questions to the arbitrator, as in PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401 (2003); or...

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