Recent Posts

With the decline and perhaps eventual demise of “manifest disregard of the law” after Hall Street Associates v. Mattel, Inc., more attention has been devoted by counsel and the courts to what it means for an arbitrator to “exceed [her] powers” (FAA Section 10 (a) (4)) such that vacatur is warranted of an award made at a place of arbitration in the United States. In the Stolt-Nielsen case, the Supreme Court held that an arbitrator exceeded powers in ordering class arbitration when the parties had made no agreement about class arbitration. That conclusion was reached for essentially two reasons. First,…
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The Supreme Court’s decision in AT&T Mobility v. Concepcion may be narrowly conceived as a decision about pre-emption of State law by the Federal Arbitration Act (“FAA”).  If that view prevails, class arbitration may have continuing vitality, particularly in regard to federal statutory claims.   There are reasons to conceive of Concepcion as a case more about limitations on State power in arbitration and less about the problematic features of class arbitration.   Indeed, the question presented for decision in Concepcion, as stated by Justice Scalia in the majority opinion, was “[w] hether the FAA prohibits States from conditioning the enforceability…
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Dear Readers: On July 8, 2011 the U.S. Court of Appeals for the District of Columbia Circuit held, in a divided 2-1 panel decision, that Exxon Mobil is not immune from claims of civil damages liability under the Alien Tort Statute  for torture and extrajudicial killing allegedly committed at its behest by the Indonesian military forces against civilian tribesmen in Indonesia.  The outcome on the issue of ATS liability of corporations is the opposite of that reached last year by a  divided panel in the U.S. Second Circuit Court of Appeals. An analysis of one of the key issues in…
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Dear Readers: The U.S. Second Circuit Court of Appeals today issued its second significant decision under the Foreign Sovereign Immunities Act of the current week. With apologies that I have not yet provided you with synopsis or analysis of the earlier ruling, I invite you to read the account of the decision today, posted to my general website. www.lexmarc.us Warm regards. Marc Goldstein

As New York’s workforce took flight from offices and cubicles to launch the Independence Day Weekend, the US Second Circuit Court of Appeals in Manhattan found that there are still a few breaths of life remaining in class arbitration, deciding to reinstate an arbitrator’s award in favor of a proposed employment discrimination class arbitration. (Jock v. Sterling Jewelers, Inc., 2011 WL 2609853 (2d Cir. July 1, 2011)). The award at issue addressed only whether the arbitration clause permitted a class arbitration, and not whether the proposed class should be certified. The panel majority in the Second Circuit rejected the District…
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Dear Readers: On my general website today, I report on a very significant Second Circuit decision concerning civil liability under the RICO (federal racketeering) statute. The case has already once been to the U.S. Supreme Court, and a petition for certiorari from this further decision can be expected.  My report is found under Legal Developments at www.lexmarc.us National holiday greetings to U.S. and Canadian readers. Marc