Top distributors of the sometimes controversial nutrition products marketer Herbalife lost their bid to compel arbitration of RICO and related claims made by lower-level distributors in Lavigne v. Herbalife, Ltd., 2020 WL 4342671 (11th Cir. July 29, 2020), which affirmed the order of a Florida district court. The top distributors, alleged to be part of…
Category: Arbitration
Public Policy Defense to Enforcement of Foreign Arbitral Award Requires Showing That Award Violates the United States’ “Most Basic Notions of Morality and Justice”
The United States has acceded to The New York Convention (the “Convention”), which requires participating nations to enforce arbitration agreements and foreign arbitral awards. Federal district courts generally enforce foreign arbitral awards unless a party establishes one of seven defenses enumerated in Article V of the Convention. One such defense is that an award is…
Eleventh Circuit Joins Majority of Circuits in Holding That FAA Prohibits Pre-Hearing Discovery From Non-Parties
After twenty years of litigation in Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc., 2019 WL 4464301 (Sept. 18, 2019), the Eleventh Circuit issued a per curiam opinion reversing the enforcement of arbitral summonses and holding that the FAA implicitly withholds the power to compel documents from non-parties without summoning them to testify. Beginning…
Party Seeking to Vacate International Arbitration Award Must Assert Ground Enumerated in Convention, Court Reaffirms
In Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Monte International GmbH, 2019 WL 1768911 (11th Cir. Apr. 23, 2019), the Eleventh Circuit affirmed the district court’s order that denied INPROTSA’s petition to vacate an international arbitration award and confirmed that award. Concluding that INPROTSA was required to assert a valid defense under the Convention…
Arbitration on a Hot Shingled Roof: Homeowners Bound by Arbitration Agreement Printed on Shingle Wrapping
Homeowners are bound by a mandatory-arbitration provision printed conspicuously on the wrapping around packages of shingles when the packages are opened and installed by the homeowners’ roofers, as a matter of Florida contract law. Dye v. Tamko Building Products, Inc., 2018 WL 5729085 (11th Cir. Nov. 2, 2018). Two Florida homeowners whose roofers had purchased,…
SCOTUS Business Cases This Term (Part 2 – Arbitration)
The Court has several arbitration-related cases before it this term. Lamps Plus, Inc. v. Varela concerns whether the FAA permits a state-law interpretation of an arbitration agreement that finds a contractual basis for class arbitration without class arbitration’s being specifically mentioned. New Prime, Inc. v. Oliveira involves the FAA’s exception for “contracts of employment of seamen, railroad…
Court Upholds Injunction Against FINRA Arbitration of Claims Against Member’s Affiliate
The Eleventh Circuit recently upheld a permanent injunction against arbitration of claims by investors against a FINRA member and its overseas affiliates on the basis that the arbitration did not concern the affiliates’ relevant business activities. Pictet Overseas, Inc. v. Helvetia Trust, 2018 WL 4560685 (11th Cir. Sept. 24th, 2018). In Pictet, two trusts had…
Availability of Class Arbitration Is a “Question of Arbitrability” to Be Decided by a Court Absent a “Clear and Unmistakable Intent” to Delegate Arbitrability Questions to an Arbitrator
For the second time in as many months, the Eleventh Circuit addressed the question of who—a court or an arbitrator—decides whether an arbitration agreement allows for class arbitration. The court faced this question just last month in Spirit Airlines, Inc. v. Maizes, 899 F.3d 1230 (11th Cir. 2018), but its more recent decision in JPay, Inc….
Spirited Court Widens Circuit Split Over Who Decides Class Arbitrability
In Spirit Airlines, Inc. v. Maizes, 2018 WL 3866335 (11th Cir. Aug. 15, 2018), the Eleventh Circuit concluded that an arbitration agreement providing that the rules of the American Arbitration Association (“AAA”) will cover all disputes constitutes clear and unmistakable evidence that the parties intended for an arbitrator to decide whether class arbitration is available….
A Default in Proceeding with Arbitration Does Not Necessarily Authorize a Default Judgment in Federal Court
In Hernandez v. Acosta Tractors Inc., 2018 WL 3761126 (11th Cir. Aug. 8, 2018), the Eleventh Circuit held that a party’s default in proceeding with arbitration after requesting it did not necessarily warrant entry of default judgment against that party in federal court. Julio Hernandez sued his former employer, Acosta Tractors, and two of its…