Letter from the Co-Chairs
Dear ADR Committee Members and Others:
Has ADR affected your clients yet? In recent months we have seen a lot of courts considering ADR issues—from the Supreme Court’s decision in Buckeye Check Cashing (discussed below) to bankruptcy courts enforcing (or not enforcing) arbitration clauses. The latter was the panel topic at our semi-annual meeting in Washington, D.C., in April, and the materials are included below.
We have a new co-chair, Faye Knowles of Fredrikson & Byron PA in Minneapolis, and we are energized by all of the activity going on in the courts regarding arbitration and other alternative dispute resolution. Please consider getting more actively involved with the ADR Committee. We are looking for volunteers for the following:
- Newsletter—
Hon. John Pearson is the new newsletter editor. Write an article. Report on a case you’re involved in. Send a letter. Share a “best practices” tip. Contact: jpearson@hinklaw.com
- Case Updates—
Let us know what’s new. Better yet, write an update for the newsletter or a meeting.
Contact: a co-chair
- Education Ideas—
Is there a topic you would like to hear more about—or speak about—at a future meeting?
Contact: a co-chair
We look forward to hearing from and working with YOU.
Bankruptcy Courts and Enforcement of Arbitration Clauses: Recent Developments 2006-07
Written by:
Hon. Barbara J. Houser
U.S. Bankruptcy Court, (N.D. Texas) Dallas
judge_barbara_houser@txnb.uscourts.gov
John K. Pearson
Hinkle Elkourie Law Firm LLC; Wichita, Kan.
jpearson@hinklaw.com
Faye Knowles
Fredrikson & Byron PA; Minneapolis
fknowles@fredlaw.com
Leading into the late 1980s, contract arbitration clauses were frequently overlooked or ignored in disputes between the parties despite the Federal Arbitration Act. In 1987, however, the Supreme Court issued Shearson/Am. Exp. Inc. v. McMahon, 482 U.S. 220 (1987), which made it clear that arbitration is a favored proceeding and courts are to enforce arbitration clauses. But arbitration, by its nature, is generally a one-time, individualized remedy, applicable only to the immediate parties. When one party to the arbitration clause is in bankruptcy, however, this individualized remedy can conflict with bankruptcy policy, which is based on centralization and equality of treatment. What is a bankruptcy court to do when faced with an arbitration clause in a debtor-creditor dispute?
Six Arguments for Avoiding Arbitration in Bankruptcy
Written by:
Michael D. Fielding
Blackwell Sanders LLP; Kansas City, Mo.
mfielding@blackwellsanders.com
It goes without saying that the best way to avoid arbitration in bankruptcy is to never agree in the first place to a contract that contains an arbitration clause. Unfortunately, few people (if any) ever consider the impact of arbitration during bankruptcy when they enter into any agreement. When faced with the difficult task of opposing a motion to compel arbitration in a bankruptcy proceeding, it is helpful to have a wide array of arguments to assert. To that end, this article will identify and briefly discuss six arguments that could be made to avoid arbitration in a bankruptcy proceeding.