As we move into fall, “Highlights” is taking a new approach – shorter case discussions in  a daily (or almost-daily) publication of about one page.  The idea is to provide a quick update on the previous day’s doings in the federal ADR world, alerting you to cases that you may want to follow more closely.   

Waiver

Terris v. Sprint Corp., 2023 U.S. Dist. LEXIS 160569 (M.D. Fla. September 11, 2023)(Jung, J.), is a post-Badgerow waiver case.  The court makes a one-paragraph finding of prejudice to the non-moving party, opining, without citation, that “there is some doubt concerning the import of prejudice in the Eleventh Circuit’s waiver inquiry” after Badgerow.   Judge Jung focuses on whether Sprint “substantially invoked the litigation machinery prior to demanding arbitration.” (Internal citation omitted).  He finds that Defendant’s filing of an “exhaustive” Motion to Dismiss, an Amended Motion to Dismiss, an Answer and Affirmative Defenses, and negotiations over the Case Management Report before invoking the arbitration provision “suggests the kind of outcome-oriented practice that waiver is designed to prevent.”  He denies Sprint’s motion to compel arbitration.

Federal Jurisdiction; DTSA arbitration

Badgerow is directly involved in Ascension Data & Analytics, LLC v. Pairprep, Inc., 2023 U.S. Dist. LEXIS 161088 (N.D. Tex. September 11, 2023)(Godbey, J).  The court holds that it lacks jurisdiction to vacate an award originating from claims under the Defend Trade Secrets Act, 18 U.S.C. 1836.  There is only federal question jurisdiction post-Badgerow, the court opines, when “a federal question independent of the FAA exists on the face of the application.” (Emphasis added). It finds that there are no such allegations here.

Choice of Law; Issue Preclusion; Alter Ego Liability

Global Gaming Philippines, LLC. v. Razon, 2023 U.S. Dist. LEXIS 160919 (S.D.N.Y. September 12, 2023)(Schofield J.), is a fact-intensive analysis of issue preclusion and personal jurisdiction.  It is worth a general reading, however, for its choice of law analysis. Judge Schofield holds that, under Second Circuit precedent, where the claim to enforce an award arises out of federal law “the preclusive effect of [an] arbitral tribunal’s decision is governed by federal law,” citing Wyly v. Weiss, 697 F.3d 131 (2^nd Cir. 2012).  She, likewise, holds that, at least in the Second Circuit, federal common law governs whether veil piercing or alter ego theories allow enforcement of an award against a party not named therein, citing CBF Industria De Gusa S/A v. AMCI Holdings, inc., 850 F. 3d 58 (2^nd Cir. 2017).

David A. Reif
Reif ADR
Dreif@reifadr.com
Reifadr.com