Supreme Court Decides Yet Another Arbitration Case
by Jill Gross
ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.
Earlier this week, the Supreme Court issued a per curiam opinion in Nitro-Lift Technologies, L.L.C. v. Howard, 2012 WL 5895686 (Nov. 26, 2012), ruling that the FAA preempted a decision by the Supreme Court of Oklahoma to rule on the validity of a covenant not to compete in the first instance, despite the existence of an arbitration clause. The Court ruled that the Oklahoma high court blatantly and improperly ignored the Court’s FAA separability doctrine, which declares that arbitrators decide in the first instance the enforceability of contracts containing a pre-dispute arbitration clause. See Buckeye Check Cashing and Prima Paint. The decision offers no new law: it just reiterates and reaffirms fundamental principles of the Court’s FAA jurisprudence, including broad FAA preemption, separability, and the power of the arbitrators to decide the enforceability of contracts containing an arbitration clause.
Professor Jill I. Gross has been a director of the Investor Rights Clinic (formerly the Securities Arbitration Clinic) since 1999. Professor Gross teaches the Investor Rights Clinic and Seminar, Mediation and Arbitration, and Securities Litigation and Enforcement. She has published numerous law review articles in the area of dispute resolution and investor justice, and has been quoted in the national media on issues relating to securities arbitration. Professor Gross is a public member of the FINRA National Arbitration and Mediation Committee, and is the program co-chair of PIABA’s annual Securities Law Seminar. As Director of Legal Skills, Professor Gross oversees and provides leadership on all matters related to curricular skills training, including writing programs, advocacy programs, and all clinics, externships, and simulations. Professor Gross previously taught as an adjunct professor at Cornell Law School (Arbitration Law) and at Benjamin N. Cardozo School of Law (Legal Writing). She is an arbitrator for FINRA Dispute Resolution and the National Futures Association. Professor Gross was an attorney in the New York City firms of Kaye Scholer LLP, Morvillo Abramowitz Grand Iason & Silberberg, and Parcher Hayes & Snyder, representing clients in white collar criminal and securities enforcement proceedings, securities arbitrations, and other commercial litigation.
Additional articles by Jill Gross