July 18, 2019

Archives for September 24, 2010

Legal Trends in Class Arbitration: Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.

A class arbitration waiver is a provision in a pre-dispute agreement that requires parties to arbitrate all of their disputes and waives the plaintiff’s right to participate in any class action lawsuit or class arbitration. Some interesting case law, described below, has developed around these waivers in recent years, and will be covered in a program in our classroom (and via webcast) on September 27 at noon.

Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003): In a plurality decision, the Supreme Court held that an arbitrator, rather than a court, has the power to determine if a contract remains silent with regard to class arbitration.

Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010): The Court held that no party is obligated to submit to class arbitration under the Federal Arbitration Act (FAA) when an arbitration agreement remains silent about the parties’ intent to allow for class arbitration, and clarified that Bazzle did not establish a standard for determining whether an arbitration agreement allows for class arbitration. The impact of the Court’s decision in Stolt-Nielsen on arbitration jurisprudence remains unclear because the Court refrained from deciding how parties could demonstrate intent to include class arbitration absent express language in a contract, and whether the FAA preempts state courts from permitting class arbitration under state law in such situations.

What’s Next?

The Supreme Court has now granted certiorari to AT&T v. Concepcion, a case that will allow the Court to decide whether the FAA preempts states from conditioning the validity of arbitration provisions on the inclusion of specific procedures, including class arbitration. If the Court finds that the FAA preempts state law regarding class arbitration waivers, then parties with unequal bargaining power may be limited in their ability to seek judicial review at either the state or federal level.

The impact of Stolt-Nielsen depends significantly on the outcome of the Supreme Court’s decision in AT&T v. Concepcion, which will clarify whether Stolt-Nielsen preempts state law on class arbitration issues.

Excerpts from “Legal Trends and Best Practices in Class Arbitration: Enforcing or Invalidating Class Actions Arbitration Waivers”, Dirk W. de Roos, Esq., Faegre & Benson LLP.

To learn more about the legal theories and cases impacting class actions arbitration, register today for a one hour program on September 27th at noon, presented by Dirk de Roos. The program is also available via live webcast.

Colorado Court of Appeals: Week of September 19, 2010 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and 40 unpublished opinions for the week of September 19, 2010.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Tenth Circuit: Opinions, 9/23/10

The Tenth Circuit on Thursday issued one published opinion and no unpublished opinions.


In Gonzales v. Hartley, the Court affirmed the district court’s denial of Petitioner’s pro se habeas petition and declined to grant him a Certificate of Appealability (COA). A COA may only be issued when the applicant has made a substantial showing of the denial of a constitutional right. However, Petitioner did not exhaust his state remedies by subjecting his claim to “one complete round of Colorado’s established appellate review process.” Additionally, Petitioner can only overcome procedural default by demonstrating “cause and prejudice or a fundamental miscarriage of justice;” Petitioner’s claims of ineffective assistance of counsel are not enough to excuse a procedural default in this case.

Applications Being Accepted for Judicial Nominating Commission Positions

The Colorado Judicial Branch is seeking applicants to fill vacancies on three judicial nominating commissions. Commissioners are volunteers appointed by the Governor, the Attorney General, and the Chief Justice, and serve a term of six years.

The Supreme Court Nominating Commission will have two vacancies as of December 31, 2010. Applicants must be licensed attorneys who reside in the Fourth or Seventh congressional districts. The Commission selects nominees for vacancies on the Colorado Supreme Court and the Colorado Court of Appeals.

The Tenth Judicial District Nominating Commission will have two vacancies as of December 31, 2010. Applicants must be licensed attorneys who reside in the Tenth Judicial District (Pueblo County). The Commission selects nominees for judicial vacancies in this district only.

The Fourteenth Judicial District Nominating Commission will have one vacancy as of December 31, 2010. Applicants must be licensed attorneys who reside in the Fourteenth Judicial District (Grand, Moffat, and Routt counties). The Commission selects nominees for judicial vacancies in this district only.

More information about nominating commissions and commissioner applications may be found at the Judicial Branch website.

Applications will be accepted through October 6, 2010. Questions may be directed to Cheryl Stevens at (303) 837-3771 or via email. Applications should be faxed to Ms. Stevens at (303) 861-7429 or mailed to: Colorado Supreme Court, Attn: Cheryl Stevens, 101 W. Colfax Ave., Suite 800, Denver, CO 80202.

Colorado Center on Law and Policy Analyzes Health Care Reform’s Effect on Colorado

Ed. note: This post was originally posted at our sister site, The Learned Lawyer.

Attorney Elisabeth Arenales, director of the Health Care Program at the Colorado Center on Law and Policy, recently sat down with Colorado Public Radio to discuss the new insurance regulations going into effect this week stemming from the Health Care Reform legislation.

Colorado should begin to see more of the effects of the Affordable Care Act at the now six-month milestone since passage. Colorado families can begin to cover their young adult members until age 26, helping to cover the single largest group of uninsured people in the state. So far, more than 8,000 seniors have received rebate checks to avoid the Medicare doughnut hole, a step on the way to preventing the 47,000 seniors who hit the hole last year from doing so again. Tax credits for small businesses will also go into effect, helping approximately 90,000 businesses provide affordable health insurance for their employees.

These and other benefits of the Affordable Care Act are discussed by Ms. Arenales here, along with new obstacles imposed by insurance companies. The Center’s complete report can be found here.