By Abigail Parnell

Most family law disputes swiftly reach a resolution.[1] However, literature “suggests that there is a significant subset of protracted family law conflicts that do not resolve because one or sometimes both parties do not want a resolution.”[2] These parties are often described as having a “high-conflict personality.”[3] High-conflict personalities seem to be characterized by an attachment to conflict, a belief of infallibility, and an ongoing sense of crisis.[4] Prolonged or recurrent litigation resulting from these traits has devastating effects in family law cases, especially on those involving children.[5]  Moreover, legal practitioners should consider implementing alternative dispute resolution (ADR) techniques in disputes involving high-conflict personalities to help the parties engage in problem-solving for the benefit their children. While ADR may seem like a simple solution, most legal practitioners are ill-equipped to recognize high-conflict personalities in the first place.[6] High conflict personalities tend to have specific traits present that once identified can assist practitioners in moving away from litigation and towards ADR. In addition, parent coordination has proven to be an effective ADR method for resolving disputes involving high conflict personalities.

High-conflict personality (“HCP”) is a descriptive rather than a diagnostic term that refers to the traits frequently seen in parties determined on escalating litigation.[7] An HCP typically demonstrates a pattern of behavior that includes cognitive distortion, blaming others, all-or-nothing thinking, and extreme behaviors.[8] Furthermore, an HCP is often associated with the Cluster B personality disorders: narcissistic, borderline, antisocial, and histrionic.[9] “Cluster B personality disorders are characterized by dramatic, overly emotional or unpredictable thinking or behavior.”[10] If legal practitioners are able to identify these behaviors, they will be better equipped to determine the best mode of conflict resolution (whether litigation or ADR).

One relatively new but proven method of ADR is called “parenting coordination.”[11] Parenting coordination is defined as:

“[A] child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or the court-making decisions within the scope of the court order or appointment contract.”[12]

Parenting coordination is successful in disputes involving an HCP because it involves a non-adversarial approach implemented by a mental health professional familiar with the psychology of high-conflict personalities.[13] In fact, one study found that parenting coordination resulted in a 75% decrease in child-related court filings.[14]

Moreover, the traditional adversarial court system frequently yields unhealthy outcomes in disputes involving an HCP.[15] As such, legal practitioners should learn the identifying characteristics of an HCP to provide more effective services. Parenting coordination is one ADR method designed with the resources to address an HCP.[16] Thus, one effective solution for high-conflict family law disputes would be for jurisdictions to provide education on HCPs along with statutory parenting coordination as an ADR method.

[1] Esther Rosenfeld & Michelle Oberman, Becoming a Family Lawyer, Confronting the Challenge of the High-Conflict Personality in Family Court, 52 Fam. L.Q. 79, 81 (2020).

[2] Id.

[3] Id.

[4] Id. at 94-96.

[5] Jessica J. Sauer, Mediating Child Custody Disputes for High Conflict Couples: Structuring Mediation to Accommodate the Needs & Desires of Litigious Parents, 7 Pepp. Disp. Resol. L.J. 501 (2007).

[6] Emily Labatut, The Effects of Parental Narcissstic Personality Disorder on Families and How to Defend “Invisible Victims” of Abuse in Family Court, 48 Southeastern L. Rev. 225, 226 (2021).

[7] Esther Rosenfeld & Michelle Oberman, supra note 1 at 86.

[8] Bill Eddy, Who are High Conflict People?, High Conflict Institute (May 15, 2019), https://www.highconflictinstitute.com/hci-articles/who-are-high-conflict-people.

[9] Emily Labatut, supra note 6, at 228.

[10] Personality Disorders, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/personality-disorders/symptoms-causes/syc-20354463 (last visited Dec. 7, 2021).

[11] Sophie B. Mashburn, “Throwing the Baby Out with the Bathwater”: Parenting Coordination and Pennsylvania’s Decision to Eliminate Its Use, 2015 J. Dis. Res. 191 (2015).

[12] The Assoc. of Family and Conciliation Courts Task Force on Parenting Coordination, Guidelines For Parenting Coordination, 44 FAM. CT. REV. 164, 165 (2006).

[13] Sophie B. Mashburn, supra note 11 at 199.

[14] Id.

[15] Esther Rosenfeld & Michelle Oberman, supra note 1 at 81.

[16] Sophie B. Mashburn, supra note 11 at 194.

By Johanna Blasak

The Campaign for Greener Arbitrations formally commenced on April 22, 2020, notably on Earth Day.¹ And, what began a year earlier as one arbitrator’s plan, a “Green Pledge²”, to conduct her arbitrations in the most environmentally responsible manner possible has gained some serious momentum.³ The enthusiastic response to the Pledge demonstrates the industry’s realization that arbitral proceedings, particularly international, are carbon intensive activities.⁴ Coupled with this increased awareness of arbitration’s impact on climate change is the industry’s nascent procedural changes due to Covid. Arbitral institutions have proven incredibly flexible by quickly enacting Covid protocols and guidelines to provide for remote hearings and proceedings.⁵ This spirit of co-operational adaptation should be maintained to allow for the accrual of environmental benefits, to give effect to the Green Pledge, and to rethink the way that international arbitration operates.

The Campaign for Greener Arbitration has created a platform for ongoing discussion and study of arbitration’s environmental impacts. The Campaign’s Steering Committee performed an EIA (Environmental Impact Assessment) review assessing the carbon footprint of a “medium-sized (valued at U.S. $30-50 million)” international arbitration.⁶  The study found that over ninety percent of the carbon emissions were directly travel-related and offered a commonsense recommendation – “fly less.”⁷ Air travel is highly carbon-intensive.⁸ Eliminating, when feasible, or otherwise reducing the amount of air travel in international arbitration will significantly decrease the carbon footprint of the proceeding. Another benefit is the reduced cost of arbitration since oil is at a seven-year high and this surge in fuel costs will certainly be reflected in travel fees.⁹ Therefore, implementing a no-fly policy as often as possible will provide environmental and financial benefits. Thereby, confirming the cost-effectiveness of arbitration. Moreover, the infrastructure for remote arbitral proceedings is already in place.

The hallmark of arbitration is efficiency. Arbitral institutions seeking to avoid delays expeditiously created new guidance for virtual hearings when Covid frustrated in-person convening.¹⁰ Freshfields, a leading international arbitration practice, has offered insight into the future application of remote hearings. Freshfields theorizes that remote hearings could be sustained as a default procedure except in the larger and more difficult cases.¹¹ Further, Freshfields helpfully imparts factors for arbitral tribunals to consider when debating whether to hold in-person or remote proceedings: “(i) the nature of the evidence and whether an in-person hearing would assist with the resolution of the dispute; (ii) the size and complexity of the dispute; (iii) technological considerations; (iv) time zone considerations; and (v) any justifiable concerns regarding witness tampering.”¹² Hopefully as tribunals apply these factors they will keep in mind the existential threat of climate change and the carbon intensity of international travel.

The Campaign has furnished the arbitral community with a case study illustrating a medium-sized international arbitration’s environmental impacts and a platform for further discussion and studies. Additionally, Covid has necessitated a change in arbitral proceedings allowing for videoconference testimonies and remote hearings. To give effect to the Green Pledge arbitration must take strides to address its inherent environmental impacts. International arbitration cannot return to the pre-covid in-person requirement, it is financially and environmentally costly and could potentially lead to the industry being flight-shamed.¹³  Therefore, it is imperative that Covid guidelines remain in place, to be utilized when feasible, to reduce arbitration’s carbon footprint and to boost the effort to green arbitration.

¹ Campaign for Greener Arbitrations, Campaign for Greener Arbitration, https://www.greenerarbitrations.com (last visited Oct. 27, 2021).

² The Green Pledge, Greenwood Arbitration, https://www.greenwoodarbitration.com/greenpledge (last visited Oct. 27, 2021).

³ Individual Signatories, Campaign for Greener Arbitrations, https://www.greenerarbitrations.com/signatories# (last visited Oct. 27, 2021).

⁴ See Lucy Greenwood & Kabir A.N. Duggal, The Green Pledge: No Talk, More Action, Kluwer Arbitration Blog (Mar. 20, 2020), https://www.arbitrationblog.kluwerarbitration.com/2020/03/20/the-green-pledge-no-talk-more-action/.

⁵ See generally, Int’l Court of Arbitration, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic (2020), https://www.iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf, (providing an example, from the ICC, of new institutional guidelines created in response to covid travel restrictions).

⁶ Greenwood, supra note 4 (providing specific data:  total carbon impact of the arbitration used as the case study was 418,531.02 kg CO2e and that it would take planting 20,000 trees, the entire tree population of Central Park, to offset the carbon emitted from this arbitration).

⁷ Id. (The study highlighted the immense carbon footprint of international arbitrations.).

⁸ Hannah Ritchie, Where in the world do people have the highest CO2 emissions from flying?, Our World Data (Nov. 9, 2020), https://www.ourworldindata.org/carbon-footprint-flying.

⁹See generally, Larry Persily, As oil and gas prices spike, global investment lags behind demand, Alaska Journal of Commerce (Oct. 20, 2021, 10:02 PM). https://alaskajournal.com/2021-10-20/oil-and-gas-prices-spike-global-investment-lags-behind-demand.

¹⁰ See Int’l Court of Arbitration, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic (2020).

¹¹ The future of remote hearings in a post-pandemic world, Freshfields, https://www.freshfields.us/insights/campaigns/international-arbitration-in-2021/the-future-of-remote-hearings-in-a-post-pandemic-world/ (last accessed on Dec. 15, 2021).

¹² Id.

¹³ Flight Shame, Wikipedia, https://www.en.wikipedia.org/wiki/Flight_shame (Flight shame or flygskam is an anti-flying social movement, started in Sweden in 2018, with the aim of reducing the environmental impact of aviation.).

By Michael Konen

On August 3, 2021, the Court of Arbitration for Sport (“CAS”) was faced with an issue that garnered substantial international attention.[1] Krystsina Tsimanouskaya, a Belarussian track and field athlete, posted a video on Instagram stating that she and another teammate had been included in the women’s 4×400 relay team at the Tokyo Olympics because the two athletes who were originally to compete were excluded.[2] Tsimanouskaya was upset that she was forced to compete in an event she did not specialize in and that the Belarus Athletics Federation made a mistake that resulted in the original team members being excluded.[3] Following her Instagram post, Tsimanouskaya was subjected to several offensive comments from Belarussian media outlets.[4]

Ultimately, the Belarussian coaching staff decided to withdraw Tsimanouskaya from the women’s 200m qualification.[5] Following this, Tsimanouskaya publicly stated that the National Olympic Committee of Belarus (“NOCB”) was trying to forcibly remove her from Japan and take her back to Belarus.[6] Tsimanouskaya was concerned about returning to the current political situation in Belarus because “many athletes there have been subjected to physical and psychological violence,” and so she sought political asylum.[7]

In addition to seeking political asylum, Tsimanouskaya applied to the CAS and requested a stay of the decision to withdraw her from the 200m qualification.[8] CAS was selected to resolve the dispute due to the requirements of Article 61.2 of the Olympic Charter, which provides, “Any dispute arising on the occasion of, or in connection with, the Olympic Games, shall be submitted exclusively to the Court of Arbitration for Sport (CAS), in accordance with the Code of Sports-Related Arbitration.”[9] Specifically, the request went to the President of the CAS Ad hoc Division.[10]

Under Article 14 of the CAS Ad hoc Rules, along with CAS jurisprudence, relief in this case could be granted if “(1) to protect the applicant from irreparable harm, (2) there is a likelihood of success on the merits of the claim, and (3) the interests of the applicant outweigh those of the opponent or of other members of the Olympic Community.”[11] Tsimanouskaya argued, regarding the likelihood of success requirement, that “factual circumstances point out the very high likelihood of success on the merits claim – [Tsimanouskaya] is the victim of the discrimination due to her public criticism of the coaches and other officials of the Belarus’ Olympic Team [and] of the Belarussian Athletic Federation.”[12]

However, the President of the CAS Ad hoc Division found that he did not have enough information to conclude the likelihood of success requirement was satisfied.[13] He specifically remarked that he could not ask any questions or clarify points with Tsimanouskaya.[14] Tsimanouskaya was unable to respond to his questions because she had been secured by the Japanese police and was incommunicado at an undisclosed location.[15]^,[16] Based on this, the President of the CAS Ad hoc Division considered the likelihood of success requirement not to be satisfied and dismissed the application on that basis alone.[17]

[1]. See generally, Krystsina Tsimanouskaya v. Nat’l Olympic Comm. of Belr., CAS Case No. OG 20/13 (March 8, 2021).

[2]. See id. at ¶ 2.3.

[3]. See id. at ¶ 2.4.

[4]. See id. at ¶ 2.6.

[5]. See id. at ¶ 2.7.

[6]. Tsimanouskaya, supra note 1, ¶ 2.9.

[7]. Id. at ¶ 2.10.

[8]. See id. at ¶ 4.2.

[9]. Id. at ¶ 5.1.

[10]. See id. at ¶ 6.1.

[11]. Tsimanouskaya, supra note 1, ¶ 6.2.

[12]. Id. at ¶. 6.4.

[13]. See id. at ¶ 6.8.

[14]. See id. at ¶ 6.8.

[15]. See id. at ¶¶ 2.11, 6.8.

[16]. Tsimanouskaya was secured by the Japanese police as part of the asylum-seeking process. Tsimanouskaya, supra note 1, ¶ 2.11.

[17]. See Tsimanouskaya, supra note 1, ¶ 6.9.

By Cole Dorsey

Current New York Knicks’ center Nerlens Noel filed a lawsuit in August 2021 in the Dallas County District Court against former Agent Rich Paul and Paul’s agency Klutch Sports.[1] The lawsuit comes after Klutch Sports filed a grievance with the NBA players’ union claiming Noel failed to pay his commission to the agency.[2] The lawsuit claims actual and punitive damages, alleging that Paul’s negligent representation led to Noel rejecting the four-year, 58-million-dollar contract with the Dallas Mavericks before the 2017 season.[3]

Noel further alleges that upon Paul’s advice, Noel turned down the contract in favor of a one-year 4.1 million “prove it deal.”[4] Paul informed Noel that by playing for the one year under the “prove it deal” Noel could prove his worth and subsequently be offered a contract totaling 100 million dollars.[5] This contract was viewed as Noel betting on himself, but ultimately the bet did not pay off.[6] Noel suffered a thumb injury during the 2017-18 season that resulted in his value the next offseason plummeting.[7] As a result of the injury, Noel claims Paul lost interest in Noel and failed to help Noel find a significant contract.[8] Noel went on to sign a two-year deal with the Oklahoma City Thunder for the league minimum of 3.75 million dollars.[9]

The lawsuit has recently been removed from state court to federal court, and Paul has since filed a motion to dismiss the case because of the two parties’ association with the National Basketball Player Association (“NBPA”).[10] Noel and Paul were both parties to the Standard Player Agent Contract (“SPAC”), a document provided by the NBPA to agents when signing players for representation.[11]

Unfortunately for Noel, the SPAC includes an agreement to arbitrate any dispute between players and the agents that represent them.[12] Therefore, because of Noel’s membership to the NBPA, the judge will likely grant Paul’s motion to dismiss, and order the dispute to be taken to arbitration. Further to the chagrin of Noel, Section 5 of the NBPA Regulations Governing Player Agents states that the intention of the NBPA is for the arbitration process to be the exclusive method of resolving any SPAC disputes between players and agents.[13] Despite Noel’s preference to bring the dispute to court, as a member of the NBPA, arbitration is likely in his future. However, hope is not lost for Noel. The arbitration proceeding will still offer Noel a fair opportunity to have his claims heard.

[1] See Tom Steele, Former Dallas Mavericks center Nerlens Noel sues ex-agent Rich Paul, claiming $58M in lost earnings, The Dallas Morning News (Aug. 25, 2021),  https://www.dallasnews.com/news/courts/2021/08/25/former-dallas-mavericks-center-nerlens-noel-sues-ex-agent-rich-paul-claiming-58m-in-lost-earnings/.

[2] See id.

[3] Id.

[4] Id.

[5] Id.

[6] See Steele, supra note 1.

[7] See id.

[8] See id.

[9] Id.

[10]See generally,  Brief for Defendant, No. 3:21-cv-2485 (N.D. Texas Oct. 18, 2021) ; Darren Heitner, Rich Paul Wants Nerlens Noel Case Pushed to Private Arbitration, sports Agent Blog (Oct. 25, 2021), http://sportsagentblog.com/2021/10/25/rich-paul-wants-nerlens-noel-case-pushed-to-private-arbitration/; Nat’l Basketball Players Ass’n, https://nbpa.com/ (last visited Nov. 11, 2021).

[11] See generally, Standard Player Agent Contract, Conception Sports Mgmt., http://conceptionsportsmanagement.com/wp-content/uploads/2014/06/CSM-NBA-Standard-Agreement-6-2014.pdf (last visited Nov. 11, 2021).

[12] Id.

[13] See Nat’l Basketball Players Ass’n, NEPA Regulations Governing Player Agents 17 (2019), https://cosmic-s3.imgix.net/fec8eea0-dbdc-11e9-a097-0b637a5431fa-Agent-Regulations–Final–2019.pdf

By Ashwani Patel

On October 12, 2021, the United States Supreme Court denied certiorari on the issue of whether California’s Private Attorneys General Act (“PAGA”) can survive federal arbitration requirements.[1] The PAGA allows for a plaintiff to bring a claim on behalf of themselves and many other ‘aggrieved employees’ to court, even if an arbitration agreement states otherwise.[2]

DoorDash is a same-day delivery company that delivers goods from restaurants and stores for a fee. Dashers, who are the people who deliver the goods, are guaranteed a minimum payment on each order depending on factors such as size, distance, and delivery logistics.[3] In this suit, Brandon Campbell, a Dasher, has alleged that the delivery company illegally used customer tips to satisfy the minimum amount DoorDash was obligated to pay its Dashers.[4] Specifically, Campbell filed a PAGA action against DoorDash claiming that the company’s tipping policy violated California’s Labor Code section 351, which stated that an employer shall not “collect, take, or receive” an employee’s gratuity.[5]

The trial court denied DoorDash’s motion to compel arbitration and cited to Iskanian v. CLS Transportation Los Angeles, which held “that a waiver of an employee’s right to bring a representative action in any forum violates public policy and that this rule is not preempted by the Federal Arbitration Act (“FAA”).”[6] A PAGA claim is outside the coverage of the FAA because it is a dispute between the employer and the state, not a dispute between the employer and employee arising out of a contractual relationship.[7]

In defense, DoorDash argued that Iskanian had been overruled by Epic Systems Corp. v. Lewis.[8] The trial court held that Epic did not address the specific issues in Iskanian because the court in Iskanian involved “a claim for civil penalties brought on behalf of the government and the enforceability of an agreement barring a PAGA representative action in any forum.”[9] Moreover, there was no evidence that the State consented to any waiver of the employee’s right to bring the PAGA claim to court.[10]

Therefore, the trial court denied DoorDash’s motion to compel arbitration. DoorDash appealed the decision to First District California Court of Appeal, which affirmed the lower court’s decision.[11] The California Supreme Court declined to hear the case, and subsequently, DoorDash, petitioned for certiorari to the United States Supreme Court, which denied certiorari.[12]

DoorDash is not the only company asking the Supreme Court whether an arbitration agreement that contain PAGA waivers are enforceable under the FAA. Other companies include Uber, Postmates, and Viking River Cruises Inc.[13] The California appellate court made the distinction that the FAA’s goal is to provide a forum for dispute resolution between private parties and the PAGA is between an employer and the state Labor and Workforce Development Agency.[14] Since the Supreme Court has not validated this distinction, it leaves the question of whether the PAGA or other state equivalent laws that allow an aggrieved party to sue on behalf of the state can reasonably waive against arbitration.

[1] See DoorDash, Inc. v. Campbell, No. A159296, 2020 Cal. App. Unpub. LEXIS 7914 (Cal. Ct. App. Nov. 30, 2020), cert. denied, 90 U.S.L.W. 3098 (U.S. Oct. 12, 2021) (No. 21-220).

[2] Cal. Lab. Code § 351 (Deering 2021).

[3] See About Us, Doordash, https://www.doordash.com/about/ (last visited Oct. 22, 2021).

[4] Campbell v. DoorDash Inc., No. A159296, 2020 Cal. App. Unpub. LEXIS 7914, at *1-3 (Cal. Ct. App. Nov. 30, 2020).

[5] Cal. Lab. Code § 351.

[6] Campbell v. DoorDash, Inc., No. CGC-19-575383, 2019 Cal. Super. LEXIS 19778, at *2 (San Francisco County Super. Ct. Dec. 18, 2019).

[7] Id.

[8] See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1622 (2018) (reaffirmed the broad preemptive scope of the Federal Arbitration Act and that arbitration agreements prohibiting class actions are illegal under the National Labor Relations Act).

[9] See Correia v. NB Baker Elec., Inc., 32 Cal. App. 5th 602, 609 (4th Dist. Ct. App. 2019).

[10] Campbell v. DoorDash, Inc., No. CGC-19-575383, 2019 Cal. Super. LEXIS 19778, at *3 (San Francisco County Super. Ct. Dec. 18, 2019).

[11] Campbell v. DoorDash Inc., No. A159296, 2020 Cal. App. Unpub. LEXIS 7914, at *4-5 (Cal. Ct. App. Nov. 30, 2020).

[12] DoorDash Inc. v. Campbell, No. A159296, 2020 Cal. App. Unpub. LEXIS 7914, cert. denied, 90 U.S.L.W. 3098.

[13] Lauren Berg, Justices Won’t Hear DoorDash’s PAGA Arbitration Challenge, Law360 Illinois, (Oct. 12, 2021).

[14] Campbell v. DoorDash Inc., No. A159296, 2020 Cal. App. Unpub. LEXIS 7914, at *7 (Cal. Ct. App. Nov. 30, 2020).

By Ashwani Patel

The Supreme Court has granted certiorari to hear whether federal judges possess subject matter jurisdiction to “uphold or cut down arbitration awards under Sections 9 and 10 of the Federal Arbitration Act (“FAA”) when the only basis for that jurisdiction is that the underlying dispute that was the subject of the arbitration involved a federal question.”[1] Section 9 of the FAA allows for court judgements confirming arbitral awards if the parties both agree.[2] Section 10 of the FAA enables United States federal courts to have the power to vacate awards made by a tribunal.[3]

In Badgerow v. Walters, the plaintiff, Denise Badgerow, was a financial advisor at REJ Properties, Inc., whose three principals were “independent franchise advisors” for Ameriprise.[4] Badgerow signed an arbitration agreement and was terminated in 2016.[5] Badgerow went to arbitration and “sought damages . . . for tortious interference of contract and for a violation of Louisiana’s ‘whistleblower’ law.”[6] The Financial Industry Regulatory Authority (“FINRA”) “arbitration panel issued an award dismissing all of Badgerow’s claims”.[7] Subsequently, in May 2019, Badgerow brought a suit in Louisiana state court, petitioning to vacate the FINRA arbitrators’ award dismissing her claims against the three principals because of fraud.[8] The principals removed to federal court and filed a motion to confirm the FINRA arbitration award.[9] Badgerow asserted a lack of federal subject-matter jurisdiction and filed a motion for remand, but the district court held that it had federal subject-matter jurisdiction over Badgerow’s petition to vacate the arbitral award.[10] Further, they ruled no fraud had occurred.[11] Thereafter, Badgerow appealed to the Fifth Circuit.[12]

The Fifth Circuit held that the district court indeed had jurisdiction over Badgerow’s petition to vacate.[13] Moreover, the district court had correctly denied Badgerow’s motion to remand her petition to vacate the award to Louisiana state court.[14] The Fifth Circuit heavily relied on Vaden v. Discover Bank, in which the Supreme Court adopted the “look-though” analysis.[15] This analysis determined whether federal jurisdiction existed in cases seeking to compel arbitration under section 4 of the FAA.[16] Here, the Fifth Circuit applied this analysis to sections 9 and 10 of the FAA and held that Badgerow’s claims “all arose from the same common nucleus of operative fact,” which meant the claims had subject matter jurisdiction over the removed petition to vacate the FINRA arbitration dismissal award.[17]

In Badgerow’s certiorari petition, she argued that the look-through analysis applied specifically to the language of section 4 of the FAA and that courts are divided on applying the analysis to sections 9 and 10 of the statute.[18] Thus, she alleged that “there is a clear and intractable conflict over a significant jurisdictional question under the FAA.”[19] The Fifth Circuit joined the majority approach that included the First, Second, and Fourth Circuits, which extended the look through approach to sections 9 and 10.[20] Meanwhile, the Third and Seventh Circuits, the minority, declined to apply the look through approach to sections 9 and 10.[21] The Supreme Court will now resolve this circuit split and define the proper scope and limits to these sections of the FAA.

[1] Vin Gurrieri, Justices To Weigh Courts’ Power Over Arbitration Awards, Law 360 Illinois (May 17, 2021).

[2] Federal Arbitration Act, 9 U.S.C. § 9 (1947).

[3] Id. § 10.

[4] Badgerow v. Walters, 975 F.3d 469, 472 (5th Cir. 2020).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Badgerow, 975 F.3d at 472.

[10] Id.

[11] Id.

[12] Id. at 470.

[13] Id. at 475.

[14] Badgerow, 975 F.3d at 475.

[15] See id. at 472-75.

[16] See Vaden v. Discover Bank, 556 U.S. 49, 57 (2009).

[17] Badgerow, 975 F.3d at 474.

[18] Id. at 472-73.

[19] Badgerow v. Walters, 975 F.3d 469 (5th Cir. 2020), petition for cert. filed, 209 L.Ed.2d 748 (U.S. 2021) (No. 20-1143).

[20] See generally, Badgerow, 975 F.3d 469.

[21] See generally, id.

By Michael Konen

In April 2021, the Superior Court of Justice in Ontario, Canada announced an interesting holding relating to the doctrine of forum non conveniens and arbitration.[1] The essential question the court answered was “[i]n the age of Zoom, is any forum more non conveniens than another?”[2] In the end, the court found that this doctrine had now “gone the way of the VCR player.”[3]

In this case, the Defendant, Freshii Development, a Chicago-based company, entered into a Development Agent Agreement (“DAA”) with the Plaintiff, a Houston-based company.[4] The DAA contained an arbitration clause requiring disputes between the parties to be submitted to arbitration before the American Arbitration Association (“AAA”) in the city where Freshii Development has its business address, which was identified as Chicago.[5] The Plaintiff, however, attempted to pursue litigation in Toronto, which the Defendant objected to;  the Defendants argued that the arbitration clause required this issue to be arbitrated in the United States and not litigated in Canada.[6] However, even if it were to be litigated, the DAA contained a forum selection clause requiring litigation in the state or federal courts of Illinois.[7]

The Plaintiff cited a previous decision that stated “arbitral proceedings ought not be held ‘where it would be either unfair or impractical to refer the matter to arbitration.’”[8] The Plaintiff argued that the arbitrability analysis contains a forum non conveniens analysis, which the court defined as the “tallying up of connective factors, or lack thereof, which makes the chosen forum otherwise appropriate or inappropriate for a hearing.”[9] The Supreme Court of Canada had previously held that the factors to be considered in deciding a stay of arbitral proceedings include a  forum non conveniens analysis, which looks to “whether the forum/venue identified in the arbitral agreement is unfair or impractical for one or another of the parties.”[10] In support, the Plaintiffs argued that no potential witnesses resided in Chicago, nor were any relevant documents located there.[11]

However, the court inquired into where AAA was located and how the hearings were to be conducted.[12] The parties stated they were unaware of AAA’s location because all submissions were made online, and the hearings were to be remote due to the ongoing pandemic.[13] The court found this information to undermine most factors in the forum non conveniens analysis.[14] As an illustration, the court stated, “Freshii Developments may have a miniature post office box or an entire office tower in Chicago, and witnesses or documents may be located in Canada’s Northwest Territories or in the deep south of the United States, and no location would be any more or less convenient.”[15]

While refusing to completely abandon forum non conveniens, the court found that it may be time to bid farewell to a “previously familiar presence in the courtroom.”[16] In the court’s view, Chicago and Toronto are on “the same cyber street . . . [N]o one venue is more or less unfair or impractical than another.”[17]

1. See generally, Kore Meals LLC v. Freshii Dev. LLC, 2021 CanLll 2896 (Can. Ont. S.C.).

[2]. Id. at para. 1.

[3]. Id. at paras. 1, 31.

[4]. See id. at para. 2.

[5]. Id. at para. 3

[6]. See Kore Meals, 2021 CanLll 2896, at para. 4.

[7]. See id.

[8]. Id. at para. 21 (quoting MDG Kingston Inc. v. MDG Computers Can. Inc., 2008 CanLll 656, para. 36 (Can. Ont. C.A.)).

[9]. Kore Meals, 2021 CanLll 2896 at para. 22.

[10]. Id. at para. 25 (quoting TELUS Commc’ns Inc. v. Wellman, 2019 CanLll 19 para 65, (Can. S.C.)).

[11]. See Kore Meals, 2021 CanLll 2896 at para. 22.

[12].  See id. at para. 28.

[13]. See id.

[14]. See id. at para 29.

[15]. Id. at para. 29.

[16]. Kore Meals, 2021 CanLll 2896 at para. 31.

[17]. Id. at para. 32.

By Abigail Parnell

The Individuals with Disabilities Education Act (IDEA) is a federal law that ensures a free and appropriate public education (FAPE) to students with disabilities in the least restrictive environment.[1] Schools are deemed to be in compliance with FAPE requirements if a student with disabilities is able to achieve meaningful educational progress through special education related services provided in an Individualized Educational Plan (IEP).[2] The emergence of global pandemic, COVID-19, did not alleviate public school districts’ FAPE responsibilities.[3] Rather, the U.S. Department of Education issued a statement affirming school districts’ FAPE responsibilities with the caveat that they can be provided in accordance with health and safety protocols.[4]

Nevertheless, many parents of students with disabilities believe that school districts are violating their FAPE responsibilities in their response to the COVID-19 pandemic.[5] IDEA provides parents and students with disabilities who believe their school district is violating FAPE with administrative dispute resolution options including mediation, resolution sessions, and due process hearings.[6] These alternative dispute resolution methods are intended to provide parties with a more cooperative and expedient solution than litigation.[7] However, in the wake of COVID-19, the IDEA alternative dispute resolution options seem incapable of providing adequate solutions for students with disabilities because many issues revolve around state or federal mandates which are out of the school districts’ control. This is problematic because a parent cannot bring a FAPE claim in court without first exhausting all administrative remedies under IDEA.[8] However, if a FAPE complaint seeks a form of relief unavailable under IDEA, the student does not need to first exhaust all administrative remedies. [9] This begs the question: must a FAPE complaint seeking a form of relief that does not align with a federal or state COVID-19 mandate first exhaust all administrative remedies?

While the aforementioned question has not been conclusively answered, the District Court for the Southern District of New York dismissed a class action in part, for that very reason.[10] On July 28, 2020, a complaint was brought against every school district in the United States alleging that when the school districts shut down and transitioned to remote learning, they “ceased providing every one of those students with a FAPE, in violation of IDEA’s substantive and procedural safeguards.”[11] The District Court for the Southern District of New York dismissed the case on multiple grounds, one of which was for “lack of subject matter jurisdiction due to failure to exhaust administrative remedies”.[12] The court explained that FAPE claims asserted against a school district require the presentation of evidence unique to the student bringing the claim, a pertinent part of which is the record in those IDEA administrative proceedings.[13] However, the Court left open the question of whether relief conflicting with a federal or state COVID-19 mandate requires the plaintiff to exhaust all administrative remedies before bringing suit.

As the COVID-19 pandemic continues into the 2021-22 school year, students with disabilities are suffering not only from the pandemic itself, but also from the political controversies surrounding school districts’ approach to COVID-19 health and safety protocols. On one hand, Lawsuits alleging that mask mandates violate the rights of students with disabilities have been filed. At the same time, other lawsuits alleging that mask mandate bans violate the rights of students with disabilities were also filed.[14]  Likewise, issues regarding remote learning and FAPE are still ongoing. Still, whether IDEA administrative proceedings can meaningfully help students with disabilities deal with these issues is yet to be determined; and whether students can bring a FAPE challenge regarding the COVID-19 mandates in court is equally unclear.

[1]  20 U.S.C § 1412(a)(1)(A) (2015).

[2]  J. Matt Jameson, et al., Free Appropriate Public Education in the Time of Covid-19, 39(4) Rural Educ. Q. 181, 182 (2020).

[3]  Id.

[4]  U.S. Dep’t of Educ., Supplemental Fact Sheet: Addressing the Risk of Covid-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities 1,2 (2020).

[5]  McKala Troxler, Note, Evaluating the Impact of the COVID-19 Pandemic on Students with Disabilities, 50 J.L. & Educ. 362, 375 (2021).

[6]  See generally, Charles J. Russo & Allan G. Osborne Jr., IDEA and Alternative Dispute Resolution: A Primer, 168 Educ. Leadership Faculty Publications 35 (2014).

[7]  Id. at 35.

[8] Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 752 (2017).

[9]  Katherine Bruce, Vindication for Students with Disabilities: Waiving Exhaustion for Unavailable Forms of relief after Fry v. Napoleon Community Schools, 85 U. Chi. L. Rev. 987, 991 (2018).

[10]  J.T. v. de Blasio, 500 F. Supp.3d 137, 195 (S.D.N.Y 2020).

[11]  Id. at 148.

[12]  Id. at 160.

[13]  Id.

[14]  Doron Dorfman and Mical Raz, Students with disabilities could sue their schools to require masks, The Wash. Post (August 19, 2021, 6:00 AM), https://www.washingtonpost.com/outlook/2021/08/19/school-masking-americans-disability-act/.

By Caroline Skaff

Alvin Harper was a former first-round draft pick in the National Football League (hereinafter “NFL”) for the Dallas Cowboys back in 1991.[1] Over the course of his career Harper played for the Dallas Cowboys, Tampa Bay Buccaneers, and Washington Redskins.[2] Harper was a wide receiver who played in one hundred and one NFL games, ran over 3,473 yards, and scored twenty-one touchdowns.[3]

This past year, Harper entered an arbitration proceeding against Balanced Bridge Funding, LLC (hereinafter “Balanced Bridge”), where he lost, and an award was entered against him.[4] Given the confidential nature of arbitration, information regarding the specifics of the arbitration has not been made available to the public. However, following the arbitration, Balanced Bridge filed an application to confirm the award in the United States District Court for the Eastern District of Pennsylvania on December 29, 2020.[5] On January 13, 2021, Balanced Bridge filed a preliminary injunction in the court to freeze Harper’s accounts to force him to comply with the arbitral decision and pay the award.[6]

After an exchange of motions by both parties, the court granted the award and ordered that Harper’s bank accounts be frozen until he complies with the Emergency Arbitrator’s Award of Emergency Interim Relief of $491,623.20.[7] During the proceedings, the Honorable Paul S. Diamond indicated his dissatisfaction with Harper throughout this litigation.[8] In ordering the freezing of Harper’s assets, Judge Diamond stated “[a]lthough freezing Harper’s accounts may inconvenience him, he has shown that he is unwilling to cooperate in this litigation, and is not interested in complying with orders issued by this court.”[9]

The court also prescribed that Harper’s accounts could be unfrozen if he were to submit sufficient proof that he is unable to comply with the directive.[10] In April, following Judge Diamond’s order, Harper filed a Suggestion of Bankruptcy under Chapter 11 of the United States Code.[11] Harper indicated that he had pending litigation in the United States Bankruptcy Court in the Southern District of Florida, which essentially forced the court’s hand in staying the litigation in the district court.[12] However, on August 3, 2021, the case in the bankruptcy court was dismissed and this litigation in the United States District Court for the Eastern District of Pennsylvania resumed.[13] Ultimately, the court has reinstated the award against Harper and ordered his payment of the original amount plus interest.[14] This year has been a rollercoaster of litigation for Harper, and it appears it may be continuing.

[1]  Alvin Harper, Wikipedia, https://en.wikipedia.org/wiki/Alvin_Harper (last accessed Oct. 29, 2021).

[2]  See Alvin Harper, Pro Football Reference, https://www.pro-football-reference.com/players/H/HarpAl00.htm (last accessed Oct 29, 2021).

[3]  Id.

[4]  See Balanced Bridge Funding, LLC v. Harper, Justia Dockets and Filing, https://dockets.justia.com/docket/pennsylvania/paedce/2:2020cv06525/579866 (last accessed Oct. 29, 2021).

[5]  See id.

[6] See id.

[7]  Balanced Bridge Funding, LLC v. Harper, Civ. No. 20-6525 (E.D. Pa. Feb. 24, 2021), at 1 (granting and confirming arbitration award).

[8]  Reenat Sinay, Ex-NFLer Owes $500K in Arbitration Tied to Concussion Case, Law 360 (Feb. 24, 2021).

[9]  Id.

[10]  See Balanced Bridge, Civ. No. 20-6525 at 1.

[11]  Balanced Bridge Funding, LLC v. Harper, Civ. No. 20-6525 (E.D. Pa. Apr. 12, 2021) (noting plaintiff’s suggestion of bankruptcy under chapter 11).

[12]  Id.

[13] See Balanced Bridge Funding, LLC v. Harper, Justia Dockets and Filing, https://dockets.justia.com/docket/pennsylvania/paedce/2:2020cv06525/579866 (last accessed Oct. 29, 2021).

[14] Id.

By Johanna Blasak

The Flint Water Crisis is one of the worst public health and environmental disasters in United States history. This crisis is also one of the most flagrant incidents of environmental injustice[1] in modern history. A timeline of critical events demonstrates several bad, cost cutting decisions made by various government officials, including Governor Snyder.[2] Yet only one official lost their job because of the crisis, the former head of the state’s drinking water office—Liane Shekter Smith.[3] Smith’s labor arbitration against the state for wrongful termination concluded October 20, 2021.[4]

A google search of ‘Flint water arbitration’ reveals several articles proclaiming that Ms. Smith was wrongly fired from her state position and that her termination was likely politically motivated.  She is portrayed as a lone scapegoat rightfully vindicated by the arbitrator’s ruling.[5] Indeed, she should feel quite relieved as she was previously exculpated of any criminal wrongdoing[6] and now she has won her employment arbitration. The arbitrator noted differential treatment among involved state officials and ultimately found that the state did not have just cause for Ms. Smith’s termination.[7] In what has been described as a remarkable victory, Ms. Smith was awarded $166,053 in lost wages and $25,827 in 401(k) retirement compensation.[8]

It is doubtful Flint residents celebrated Ms. Smith’s win. In fact, one resident reacting to the news proclaimed, “[t]he system just spit in the face of every resident who died or was harmed. [Smith] should not be compensated for harming people.”[9] Evidence shows that Flint residents have endured unhealthy conditions for years[10], it is understandable if they are still feeling disregarded. People died because of the untreated tap water.[11] And although the residents reached a monetary settlement with the city[12] they have arguably not been afforded a hearing of their grievances.  The public’s trust has been corroded. Additionally, the public’s purse has been levied, because Flint residents pay, through taxes, not only for Ms. Smith’s legal fees (totaling $566,000) but also her arbitral award.[13]

In 2019, the City of Flint officials announced that the tap water was safe; most residents continue to rely on bottled water.[14] It is difficult for residents to forget the past pollution of the drinking water particularly when adverse health impacts are ongoing. City and state officials’ misguided measures to save the city of Flint money created a very costly environmental disaster. And, while the arbitrator’s ruling may have yielded a personal victory for Ms. Smith; it may have conversely stoked the public’s perception that governmental culpability remains elusive. These perceptions may indicate a disconnect between what was being arbitrated—Ms. Smith’s wrongful termination—and what the public believes the issue in dispute is—community endangerment and harm. Rather than appeal the arbitrator’s order, the state settled for $300,000, a 56% increase in the arbitral award but less than the $900,000 that Ms. Smith had sought in damages.[15] By prevailing in her wrongful termination suit, it can arguably be claimed that Ms. Smith used her employment arbitration as a path to vindication in the Flint water crisis.  However, the Flint public may feel their interests have been vitiated in the process.

¹ See Envtl. Prot. Agency, Environmental Justice (2021), https://www.epa.gov/environmentaljustice (“Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. This goal will be achieved when everyone enjoys: (i) The same degree of protection from environmental and health hazards, and (ii) Equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”).

2 See Katherine Gallagher, Environmental Injustice: The Flint Water Crisis, Treehugger (May 14, 2021), https://www.treehugger.com/environmental-injustice-flint-water-crisis-5181655.

³ See Ed White, Arbitrator: Official wrongly fired in Flint water scandal, Assoc. Press (Oct. 20, 2021), https://apnews.com/article/environment-and-nature-michigan-flint-6273d7e81060d0c8fe9fb1f18949ddda.

⁴ Id.

⁵ See generally, id.

⁶ See Only state official fired over Flint water wants job back, Assoc. Press (May 19, 2021, 3:17PM), https://wtop.com/national/2021/05/only-state-official-fired-over-flint-water-wants-job-back/ (“Smith was charged with misconduct in office and neglect of duty, and put on notice that an involuntary manslaughter charge would be pursued because bacteria in the water were linked to a fatal outbreak of Legionnaires’ disease. But charges were dropped in 2019 in exchange for a no-contest plea to an obscure misdemeanor that didn’t result in any jail time. The case was erased after a year, under a deal with the special prosecutor.”).

⁷ Assoc. Press, supra note 3.

⁸ Id.

⁹ Id. (Notably the remark was made by Flint resident Lee Ann Walters whose efforts helped expose the lead contamination, when the City of Flint sampled water at her home and found elevated lead concentrations in February 2015.).

¹⁰ See James Dean, Water crisis took toll on Flint adults’ physical, mental health, Cornell Chronicle (Apr. 15, 2021), https://www.news.cornell.edu/stories/2021/04/water-crisis-took-toll-flint-adults-physical-mental-health (New research from Cornell and the University of Michigan offers the first comprehensive evidence that the city’s adult residents suffered a range of adverse physical and mental health symptoms potentially linked to the crisis in the years during (2014 – 2019) and following it, with Black residents affected disproportionately.).

¹¹ See generally, Susan J. Masten et al., Flint Water Crisis:  What Happened and Why? (Dec. 2016) (on file with the National Institute of Health) (detailing the timeline and conditions residents experienced, including fatal outbreaks of Legionnaires’ disease).

¹² Tori B. Powell, Judge approves $626 million settlement in Flint water crisis case, CBS News (Nov. 11, 2021), https://cbsnews.com/news/flint-water-settlement-626-million/.

¹³ Assoc. Press, supra note 6.

¹⁴ Assoc. Press, supra note 3.  

¹⁵ Ed White, Michigan to pay $300K to only staffer fired over Flint water, Assoc. Press (Nov. 5, 2021), https://www.usnews.com/news/politics/articles/2021-11-05/michigan-to-pay-300k-to-only-staffer-fired-over-flint-water.