August 4, 2015

Developments on Judicial Review Under the FAA after Hall Street

An article by AAA Arbitrator Theodore Cheng entitled "Developments on Judicial Review Under the FAA after Hall Street," in Alternative Dispute Resolution, an on-line publication of the ABA Litigation Section. You can read the article at the link below:

August 3, 2015

Arbitrator Disclosures - What are your thoughts?

When an arbitrator is conducting a conflict check, should his or her conflicts database include arbitration counsel and their law firms, expert witnesses and other professionals? How extensive should the disclosures be? Please post your thoughts/comments below.

AAA® Advanced Training in Health Care Mediation: October 1-2, 2015 in San Francisco

With changes affecting health care law, experienced mediators interested in mediating health care-related matters must become well-educated in the nuances and uniqueness of disputes within the field. This highly interactive, advanced mediation workshop provides such critical information.

Topics include:

• Health Care Disputes Subject to Litigation
• Accountable Care Organizations (ACO) Disputes
• Medical Staff Fair Hearings and Peer Review
• The Commercial Mediation Process: Soup to Nuts
• Anatomy of a Medical Malpractice Case
• Research Relevant to Medical Malpractice Lawsuits

Who Should Attend? Experienced mediators & attorneys, administrators, and health care professionals interested in the use of mediation in resolving disputes in their fields (prior mediation training is required to fully benefit).

For the full agenda, faculty bios, and CLE credit information, please visit:

July 31, 2015

Statutory and Provider Rules for Serving Notice for Arbitration

By Gerald M. Levine, Esq., Levine Samuel, LLP

CPLR 7503(c) provides that "notice or demand [for arbitration] shall be served in the same manner as a summons or by registered or certified mail, return receipt requested." Plaintiff in Town of Amherst v. Granite State Ins. Co., Inc., 2015 NY Slip Op 05352 (4th Dept. 6-19-2015) argued that defendant's service of a demand for arbitration was defective because it was inconsistent with the statutory requirements. The motion court agreed; the appellate division reversed.

Two interesting points in the case. First, the parties had entered into a handwritten agreement in which they "agreed to litigate" a particular issue that plaintiff believed constituted a waiver of the Policy's arbitration clause. The court held that "Once the parties to a broad arbitration clause have made a valid choice of forum . . . all questions with respect to the validity and effect of subsequent documents purporting to work a modification or termination of the substantive provisions of their original agreement are to be resolved by the arbitrator."

The second point concerns service of the demand for arbitration. The court held that New York law was inapplicable. Defendant had served the demand by Federal Express, which the court in an earlier case, Matter of New Cent. Mut. Fire Ins. Co. V. Czumaj, 9 A.D.3d 833, 834 (2004) had held was defective because it was not one of the permitted methods of service.

However, in Town of Amherst the parties had expressly agreed to be bound by the procedural rules of the American Arbitration Association, which permits such service--Rule 39 then but currently Rule 43 under the Amended Commercial Arbitration Rules.

The agreement to be bound by the rules of the arbitral provider for serving notices had the result of superseding New York Law, citing Smith v. Positive Prods., 419 F.Supp 2d 437, 446 (SDNY 2005).

Federal Arbitration Case Update - Cox and the Courtroom

By Richard Birke

Following is an interesting and recent federal court ruling related to arbitration.

Litigation Activity Results in Waiver of Right to Arbitrate
Healy v. Cox Communications
United States Court of Appeals, Tenth Circuit
June 24, 2015

In 2009, Cox's cable service subscribers sued, arguing that Cox had illegally tied premium cable to its "set-box" rental. Cox moved to dismiss. While the motion was pending, Cox inserted mandatory arbitration clauses and a class waiver in all its contracts, including those of putative class members.

Class certification failed, but smaller sub-classes began to file many class actions - each of which was designed to overcome the objections the court had with the original, national attempt to certify a class.

Richard Healy became the lead plaintiff in an Oklahoma-based case. Cox moved to dismiss, and when that was unsuccessful, the parties agreed to stay other cases and use Oklahoma as a bellwether.

After substantial activity, including a grant of class certification, Cox moved again to compel arbitration. The district court denied the motion, ruling that Cox's litigation activity amounted to a waiver. Cox appealed.

The Court of Appeals for the Tenth Circuit affirmed. It found that "the parties then engaged in extensive pre-trial discovery, issuing interrogatories, submitting declarations, exchanging 10s of thousands of documents, locating and hiring experts, and deposing witnesses. In September 2013, named plaintiff Healy moved to certify a class. Cox opposed the motion and moved to exclude the testimony of Healy's experts in support of the motion. Nowhere in its answer did Cox inform the district court of its arbitration agreements or raise the presence of these agreements as an impediment to the alleged numerosity, typicality, and commonality of the class. During the pendency of the motion for class certification, the parties continued to engage in discovery. Cox also filed a surreply in opposition to the motion for certification, which again did not mention the arbitration provisions."

The Court used a six-part test to determine waiver. The factors are "(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party."

The Court analyzed each and found that they "strongly cut against Cox." The district court's denial of the motion to compel arbitration was affirmed, and the case remanded for an increasingly rare class action trial on the merits.

This entry was posted in Alternative Dispute Resolution, Arbitration, Arbitrator, Class Action, Multi District Litigation and tagged class certification, Communications, Cox, Healy v. Cox Communications, motion to compel arbitration, Tenth Circuit, United States Court of Appeals, waiver by Richard Birke.

Arbitration and Mediation Courses - Webinars/Live/Online

To view webinars and live Courses, see the following link:

To view online courses, see the following link:

July 30, 2015

SAVE THE DATE - October 11, 2015, Online Dispute Resolution Program

Lawline will be sponsoring a 3-member panel discussion led by Gerald M. Levine on the administrative (ODR) and statutory procedures for combatting cybersquatting. It will take place on October 11, 2015 at midday for 75 minutes (live and streamed) at New York Law School. The panelists will cover the arbitral regime implemented by the Internet Corporation for Names and Numbers (ICANN), the Uniform Domain Name Dispute Resolution Policy, and the Anticybersquatting Consumer Protection Act, both of which were rolled out in 1999. The discussion will include procedures, evidentiary demands, remedies, and jurisprudence of both regimes.

September Arbitration Events - Posted by NYIAC

Tenth Annual ICC New York Conference (Sept. 21)

This conference will address current challenges facing institutions, counsel and arbitrators from an ICC perspective. The conference will take place at Sidley Austin LLP and will feature Andrea Carlevaris, Secretary General, ICC International Court of Arbitration and President, SICANA, Inc.
Register by August 21st for an Early Bird Discount

NYIAC Fall for Ethics Breakfast Panel (Sept. 22)

Two years in, how are the IBA Guidelines on Party Representation faring? Are they being used? Are they effective at regulating counsel conduct? Join the discussion with speakers including Julie Bédard, Paul Friedland, Samaa Haridi and Elliot Polebaum, moderated by Joseph LoBue and Melissa Byroade. The panel will take place at NYIAC from 8:30-10:15 a.m.; attendees will be eligible to receive 2.0 NY Ethics CLE credits. Stay tuned for details and registration information.

Fourth Annual GAR Live New York (Sept. 24)

This one-day conference will bring together an elite line up of speakers to discuss a variety of topics, including "Damages - why do arbitrators always get it wrong?" The conference is co-chaired by Mark Friedman and John Fellas.
*NYIAC Individual Members receive a 15% discount on registration. For details, e-mail

NYIAC Breakfast for Individual Members (Sept. 29)

Olivier André, Vice President of CPR, joins us for a breakfast session at NYIAC with up-to-the-minute updates on CPR initiatves.
*Open to NYIAC Individual Members only.

July 29, 2015

Guidance Note: Arbitration and Social Media

To access the Guidance Note: Arbitration and Social Media, see the following link:

The Guidance Note was prepared by a committee consisting of: Thomas D. Halket (Chair), Stephen P. Gilbert, Herbert H. (Hal) Gray, Larry D. Harris, Robert A. Holtzman, William H. Lemons, Peter L. Michaelson, Edna Sussman, Irene C. Warshauer and John H. Wilkinson.

Building a Sustainable ADR Practice, A Guide for Lawyers (View Online)

On May 27, 2015, the Dispute Resolution Section of the NYSBA presented the CLE "Building a Sustainable ADR Practice, A Guide for Lawyers." If you missed the program, you can view it here online: