The focus today is recent state appellate court decisions on arbitration. Because there are an awful lot of them, I am going to divide them roughly into those that are pro arbitration, and those that are hostile to arbitration. This post focuses on the three relatively hostile cases (with the friendly cases coming in a sequel), on issues of scope, delegation clause, and vacatur.
In Keyes v. Dollar General Corp., 2018 WL 1755266 (Miss. April 12, 2018), the Mississippi Supreme Court wrestled with whether claims of “malicious prosecution” are within the scope of an arbitration agreement. Just as it did a few months ago, the court concluded those claims are not within the scope of the arbitration agreement. Even though in Keyes, the employee’s arbitration agreement provided for arbitration of all disputes “arising out of your employment…or termination of employment” and the employee was accused of stealing a gift card, which led to a criminal complaint. The court noted that there was no evidence the employee “contemplated” this situation and that the employer could have specifically included claims of malicious prosecution, false imprisonment, etc. in the arbitration agreement. [Can you imagine if we all had to list every possible claim for it to be covered by an arbitration agreement? So. Many. Pages.] On a similar issue, Texas reached the opposite result.
In Citizens of Humanity, LLC v. Applied Underwriters Captive Risk Assurance Co., Inc., 299 Neb. 545 (April 6, 2018), the Nebraska Supreme Court refused to enforce the delegation clause in the parties’ agreement. [Yes, *that* Citizens of Humanity, of fancy jean fame.] Just as in a...
