The Arbitration Agreement - Part 1 - Chapter 1 - AAA Yearbook on Arbitration and the Law - 24th Edition

STEPHEN K. HUBER is Professor Emeritus at the University of Houston Law Center, and has served as a visiting professor at the University of Texas, Rice University (Political Science), Pepperdine Law School (Dispute Resolution Program), and the University of East Africa (Dar es Salaam, Tanzania). Mr. Huber is a member of the State Bar of Texas, and the editor of Alternative Resolutions, the quarterly journal of the Dispute Resolution Section. He is the author of numerous publications relating to arbitration.

BEN H. SHEPPARD, JR. is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and Co-Chair of the firm's international dispute resolution practice. He was chair of AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules that established a pre-arbitral emergency arbitrator procedure. He was the author of the report and recommendation to the ABA House of Delegates in support of the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. He chaired one of the two working groups that promulgated the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. He is a past chair of the Disputes Division of the ABA Section of International Law and for five years served as editor-in-chief of The International Arbitration News. He is a member of the American Law Institute and a Fellow of the College of Commercial Arbitrators.

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Originally from: AAA Yearbook on Arbitration and the Law - 24th Edition

CHAPTER 1
THE ARBITRATION AGREEMENT

1.01 Contract Formation
Hergenreder v. Bickford Senior Living Group, LLC, 656 F.3d 411 (6th Cir. 2011)

Arbitration agreement was not valid and enforceable where employee was not informed of the existence of, or provided a copy of an arbitration agreement that was mentioned, but not contained, in the employee handbook.

Maureen Hergenreder began working as a nurse for Bickford Senior Living Group in early November 2006. She filed this suit after she was fired from her job with Bickford in January 2007, alleging that her firing was in violation of the Americans with Disabilities Act. In response, Bickford filed a motion to stay the proceedings and compel arbitration. The district court granted this motion and dismissed the case, finding that Hergenreder assented to a valid agreement to arbitrate the claims she has brought in this suit. Hergenreder appealed.

Bickford alleges that Hergenreder is subject to an arbitration clause that is mentioned in her employment handbook. The handbook says that Hergenreder “should” refer to Bickford’s policy on alternative dispute resolution. That policy states that the employee agrees to the terms of the arbitration clause when he/she continues employment with the company. Bickford policy was to have each employee sign a document that in effect proved that they were made aware of the arbitration clause and that they assented to it. However, Bickford was not able to produce such a document. Instead, Bickford argues that the language contained in the employment handbook that said that the employee “should” refer to the company’s policy on alternative dispute resolution was enough to give Hergenreder notice of the arbitration clause.

Table of Contents:

Chapter 1

The Arbitration Agreement

1.01 Contract Formation
Hergenreder v. Bickford Senior Living Group, LLC, 656 F.3d 411 (6th Cir. 2011)
Burch v. Premier Homes, LLC, 199 Cal. Rptr. 3d 730 (2011)
Lepisto v. Senior Lifestyle Newport Limited Partnership, 78 So.3d 89 (Fla. App. 4 Dist. 2011)
In re Morgan Stanley & Co., 203 S.W.3d 182 (Tex. 2009)
BGT Group, Inc. v. Tradewinds Engine Services, LLC, 62 So.3d 1192 (Fla. App. 4 Dist. 2011)

1.02 State Contract Law Defenses
Applied Energetic, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522 (2nd Cir. 2011)
Cappucitti v. DirecTv, Inc., 623 F.3d 1118 (11th Cir. 2010)
Wake County Board of Education v. Dow Roofing Systems, LLC, 792 F.Supp.2d 897 (E.D.N.C.2011)

1.03 Public Policy Defenses: Unconscionability
Harrington v. Atlantic Sounding Co., 602 F.3d 113 (2d Cir. 2010)
Nino v. Jewelry Exchange, Inc., 609 F.3d 191 (3d Cir. 2010)
Mazera v. Varsity Ford Management Services, 565 F.3d 997 (6th Cir. 2009)
Hafer v. Vanderbilt Mortg. and Finance, Inc., 793 F.Supp.2d 987 (S.D. Tex. 2011)
Fl-Carrollwood Care, LLC v. Gordon, 72 So.3d 162 (Fla. 2d DCA 2011)

1.04 Defective (Unenforceable) Arbitration Agreements
MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849 (4th Cir. 2010)
In re Electric Machinery Enterprises, 479 F.3d 791 (11th Cir. 2007)
Hill v. Hornbeck Offshore Services, Inc., 799 F.Supp.2d 658 (E.D. La. 2011)
American General Home Equity, Inc. v. Kestel, 235 S.W.3d 543 (Ky. 2008)
Villa Vicenza Homeowners Assn. v. Nobel Court Development, LLC, 120 Cal. Rptr. 3d 217 (Cal. Ct. App. 2011)

1.05 Waiver of the Right to Arbitrate
Gray Holdco, Inc. v. Cassady, 654 F.3d 444 (3d Cir. 2011)
Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F.3d 1115 (8th Cir. 2011)
Baker & Taylor, Inc. v. AlphaCraze.com Corp., 602 F.3d 486 (2d Cir. 2010)
La. Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156 (2d Cir. 2010)
Hill v. Ricoh Americas., 603 F.3d 766 (10th Cir. 2010)
Citibank, N.A. v. Stok & Associates, P.A., 387 Fed. Appx. 921(11th Cir. 2010), cert. granted, 79 U.S.L.W. 3465 (U.S. Feb. 22, 2011) (No. 10-514)
Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd., 575 F.3d 476 (5th Cir. 2009)
McNamara v. Yellow Transp., Inc., 570 F.3d 950 (8th Cir. 2009)
Augusta v. Keehn & Assocs., 123 Cal.Rptr.3d 595 (Cal. App. 4th 2011)
Burton v. Cruise, 118 Cal. Rptr. 3d 613 (Cal. App. 4th 2010)
Price v. Fax Recovery Sys., Inc., 49 So. 3d 835 (FL Ct. App. 2010)