Forum Selection Clauses Were Here Before They Were In Bylaws

Recent rulings by judges in Delaware and other states have given impetus to the adoption of exclusive forum bylaws.  To the casual observer, the idea might seem entirely novel.  But as Koheleth (the Gatherer) wrote “What has been is what will be, and what has been done is what will be done, and there is

9th Circuit Holds Issuer Is Investment Bank’s “Customer” And “Actions and Proceedings” Include Arbitrations

In 2005 and 2006, the biggest little city in the world (aka Reno, Nevada) issued approximately $211 million in securities employing Goldman, Sachs & Co. as its sole underwriter and broker-dealer.  The financing didn’t work out and Reno initiated arbitration proceedings against Goldman, Sachs before the Financial Industry Regulatory Authority (FINRA).  Goldman, Sachs filed an action

Court Holds Non-Parties May Enforce Arbitration Agreement Even Though The General Rule Is That They Can’t

The Financial Industry Regulatory Authority, more commonly known as FINRA, has adopted a Code of Arbitration for Customer Disputes (FINRA has a separate code for industry disputes).  Under FINRA’s Customer Code, a claim by or against an inactive member is ineligible for arbitration unless, after the claim arises, the customer agrees in writing to arbitrate.  Rule 12202. 

Who’s The “Company”?

In corporate groups, who employs whom may not be entirely clear.  For example, an employee may have an employment agreement with a subsidiary but think of herself as being employed by the corporate parent.  The identity of the employer may be critically important.  For example, it may determine whether the employee is entitled to indemnification.

What Happens When Some Investors Agree To Arbitration But Others Don’t?

Arbitration continues to be a hot topic for the courts.  See Achilles’ Shield And Judicial Review Of Arbitration Awards  and U.S. Supreme Court Holds That State Courts Must Not Assume The Arbitrator’s Role By Declaring Non-Compete Agreements Null And Void.  Yesterday, the Fourth District Court of Appeal tackled the question of what happens when some investors

Achilles’ Shield And Judicial Review Of Arbitration Awards

This month, I revisited the Huntington Library in San Marino, California.  Among other things, I wanted to have another look at the Shield of Achilles, John Flaxman’s magnificent re-imagining of the shield crafted by Hephaestus and brought to Achilles by his mother, Thetis.  Homer describes the shield in the Iliad.  The silver-gilt shield is a stunning work of

U.S. Supreme Court Holds That State Courts Must Not Assume The Arbitrator’s Role By Declaring Non-Compete Agreements Null And Void

A short per curiam opinion issued yesterday by the United States Supreme Court concerning an employment dispute in Oklahoma is likely to result in consternation in California.  Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. ___ (2012) involved a dispute between an employer and two of its former employees.  The employees had signed confidentiality and noncompetition agreements that