Articles From John R. Schleppenbach

First circuit declines to order arbitration due to lack of evidence blind plaintiffs were aware of arbitration clause By John R. Schleppenbach Alternative Dispute Resolution, April 2019 The first circuit’s decision in National Federation of the Blind v. The Container Store, Inc. serves as a caution that arbitration clauses should be made conspicuous to ensure their enforceability.
Second circuit affirms denial of insider trader’s habeas petition holding that the trader’s anticipation of maintaining a good relationship with the tippee was a sufficient benefit to support conviction By John R. Schleppenbach Business and Securities Law, March 2019 Securities practitioners would do well to advise their clients that insiders who provide stock tips based on non-public information can be broadly penalized, even in the absence of money changing hands.
Eleventh Circuit rejects waiver claim and allows motion to compel arbitration after nearly 10 years of litigation By John R. Schleppenbach Alternative Dispute Resolution, June 2018 The Eleventh Circuit recently rejected a waiver argument in Gutierrez v. Wells Fargo Bank, NA, even though the litigation had been pending for nearly 10 years before a formal motion to compel arbitration was made.
Chair’s column By John R. Schleppenbach Alternative Dispute Resolution, May 2018 A message from the Section on Alternative Dispute Resolution's chair, John Schleppenbach.
Chair’s column: The future of ADR By John R. Schleppenbach Alternative Dispute Resolution, February 2018 A message from ADR Section Chair John Schleppenbach.
Chair’s column By John R. Schleppenbach Alternative Dispute Resolution, December 2017 A message from ADR Section Chair John Schleppenbach.
Chair’s column By John R. Schleppenbach Alternative Dispute Resolution, November 2017 A message from ADR Section Chair John Schleppenbach.
A welcome from the incoming Chair By John R. Schleppenbach Alternative Dispute Resolution, June 2017 Learn more about incoming ADR Section Chair John Schleppenbach.
State employees’ statements during internal investigations may be admissible in criminal proceedings, even though compelled under threat of job loss, if self-incrimination rights later waived By John R. Schleppenbach Government Lawyers, May 2017 Though internal investigators should still take pains to avoid the appearance that they are threatening public employees with sanctions should they decline to cooperate with an investigation, the Eleventh Circuit has now provided a blueprint for investigators to obtain a waiver and use an employee’s statement even if such threats are made.
Supreme Court to consider legality of arbitration agreements containing class action waivers under NLRA By John R. Schleppenbach Alternative Dispute Resolution, April 2017 The United States Supreme Court appears poised to resolve a circuit split over whether workplace arbitration agreements containing class and collective action waivers are enforceable under the Federal Arbitration Act and the National Labor Relations Act, having granted certiorari in three consolidated cases in January 2017.
Tenth Circuit declines to compel arbitration due to conflicts in arbitration agreements By John R. Schleppenbach Alternative Dispute Resolution, January 2017 The Tenth Circuit’s recent decision in Ragab v. Howard declined to enforce several arbitration agreements because the different procedures specified in the different clauses suggested there had been no meeting of the minds as to the desire to arbitrate.
Fourth Circuit declines to enforce arbitration agreement purporting to waive application of federal law By John R. Schleppenbach Alternative Dispute Resolution, October 2016 The Fourth Circuit in Hayes v. Delbert Services Corporation recently declined to enforce an arbitration clause on the grounds that it contained a waiver so extreme that it rendered the arbitration remedy essentially illusory.
How substantial is substantial? Conflicts of interest and government attorneys By John R. Schleppenbach Government Lawyers, June 2016 The Model Rules of Professional Conduct provide that “a lawyer who has formerly served as a public officer or employee of the government . . . shall not . . . represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”
Second Circuit denies sovereign immunity to instrumentality of foreign state that caused securities fraud losses in the U.S. By John R. Schleppenbach Business and Securities Law, May 2016 Foreign sovereigns who marketed securities in the U.S. and caused losses there will not be able to assert sovereign immunity to avoid U.S. securities fraud actions.
Tenth Circuit holds failure to pay arbitration fees can result in resumption of court proceedings By John R. Schleppenbach Alternative Dispute Resolution, November 2015 In the recent case of Pre-paid Legal Services, Inc. v. Cahill the court held the stay of litigation may be lifted and a federal lawsuit maintained.
Eighth Circuit denies non-signatories standing to challenge arbitration agreement By John R. Schleppenbach Alternative Dispute Resolution, June 2015 A summary of the recent decision in Conners v. Gusano’s Chicago Style Pizzeria.
Third Circuit weighs in on extraterritorial application of U.S. securities laws By John R. Schleppenbach Business and Securities Law, June 2015 Deciding an issue of first impression, the Third Circuit joined the growing consensus that a securities transaction can be considered domestic (and therefore subject to U.S. securities laws) if title is passed or irrevocable liability to carry out the transaction is incurred in the United States.
Third Circuit weighs in on extraterritorial application of U.S. securities laws By John R. Schleppenbach Business Advice and Financial Planning, May 2015 This court has recently weighed in on extraterritoriality in United States v. Georgiou, equating the place where the purchase or sale occurred with the place where liability to carry out the transaction was incurred.
Seventh Circuit dismisses appeal seeking to dictate issues to arbitrator for lack of jurisdiction By John R. Schleppenbach Alternative Dispute Resolution, February 2015 As the Seventh Circuit recently reminded the parties to a pension funding arbitration in Central States, Southeast & Southwest Areas Pension Fund v. US Foods, Inc., review of an arbitrator’s determinations may generally only be had after, and not during, the arbitral hearing.
Second Circuit clarifies bar on extraterritorial application of U.S. securities laws By John R. Schleppenbach Business and Securities Law, October 2014 The bar on the extraterritorial application of the U.S. securities laws applies to cases involving foreign purchases of foreign securities even if the securities are cross-listed on a domestic exchange.
Illinois appellate court holds arbitration agreement unconscionable By John R. Schleppenbach Alternative Dispute Resolution, July 2014 It is notable that the Illinois Appellate Court in Potiyevskiy v. TM Transportation, Incorporated recently affirmed a trial court’s denial of a motion to compel arbitration based on the unconscionability of the arbitration clause.
Eighth Circuit applies negligence standard to SEC enforcement claims for solicitation of false proxies, falsification of records, and deception of auditors By John R. Schleppenbach Business and Securities Law, February 2014 Corporate officers may now be civilly liable for soliciting false proxies, falsifying corporate records, and deceiving auditors without a showing of scienter.
First District finds waiver of right to force individual arbitration of class action claims By John R. Schleppenbach Alternative Dispute Resolution, October 2013 A corporate litigant in the First District case of Bovay v. Sears, Roebuck & Co. recently argued that it had not waived its right to arbitrate by failing to assert it during approximately a decade of litigation.
A new defense to malpractice claims for securities litigators By John R. Schleppenbach Business and Securities Law, June 2013 Securities class action litigators may now defend malpractice actions on the grounds that an award of attorneys’ fees in a class action includes a conclusive determination that counsel’s representation was adequate.
Illinois Supreme Court revisits enforceability of nursing home arbitration agreements By John R. Schleppenbach Alternative Dispute Resolution, May 2013 The enforceability of arbitration clauses contained in nursing home admission agreements has recently become a subject of increased debate throughout the United States.
Fifth Circuit holds personal jurisdiction needed to confirm foreign arbitration award By John R. Schleppenbach Alternative Dispute Resolution, February 2013 The Fifth Circuit has added to the emerging trend of allowing petitions to confirm foreign arbitration awards to be dismissed based on a lack of personal jurisdiction.
In issue of first impression, First District addresses impact of arbitration award exceeding Illinois’ monetary limits on court-ordered arbitration By John R. Schleppenbach Alternative Dispute Resolution, November 2012 Until recently, no Illinois court had addressed the impact of an arbitration award exceeding the Illinois Supreme Court's monetary limits. In June of this year, however, the First District in Babcock v. Wallace opined that such an award was erroneous, but nonetheless affirmed its enforcement because the party seeking to set it aside had failed to follow the appropriate procedural steps to do so.
Ninth Circuit concludes issue of whether FAA’s Section One exceptions apply is nonarbitrable, But… By John R. Schleppenbach Alternative Dispute Resolution, April 2012 Until the Ninth Circuit’s recent decision in In re Van Dusen, no federal appeals court had addressed whether the applicability of the exceptions to the Federal Arbitration Act’s coverage contained in Section One of that statute constituted a “question of arbitrability” that the parties could agree to arbitrate.
Ninth Circuit concludes Declaratory Judgment Act does not give federal courts discretion to decline to rule on motions to compel arbitration By John R. Schleppenbach Alternative Dispute Resolution, October 2011 Given the long-standing and widespread push for federal courts to further the efficiency and ease of arbitration by summarily enforcing arbitration agreements where they are found to exist, the Ninth Circuit’s ruling in Countrywide Home Loans, Inc. v. Mortgage Guaranty Insurance Corporation is perhaps unsurprising.
Second Circuit affirms denial of Petition to Compel Arbitration based on counsel’s conflict of interest By John R. Schleppenbach Alternative Dispute Resolution, March 2011 A look at the case of GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., in which the Second Circuit affirmed the denial of a petition to compel arbitration based on a conflict of interest by the petitioner’s counsel.

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