Businesses of all types and sizes throughout the United States, Mexico and beyond bring their disputes to Gardere's litigation team and receive practical, responsive, boutique-style attention in return. Our clients have access to the firepower and value of a well-known and highly-regarded Firm's capabilities and interdisciplinary strengths.
Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 60 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
In Rent-A-Center, West, Inc. v. Jackson, __ U.S. ___ (June 21, 2010 slip op.) the U.S. Supreme Court addressed the arbitrability of a dispute regarding whether an arbitration agreement is enforceable. The case arose from a "Mutual Agreement to Arbitrate Claims" that was created in an employment context. That agreement contained two parts. Part one, the substantive part, contained the parties' agreement to arbitrate claims that the employee might have against the employer. Part two, the procedural part, included, among other provisions regarding the conduct of the arbitration, a clause that specifically delegated to the arbitrator the power to arbitrate whether the agreement is enforceable. This clause is referred to as the "delegation provision."
The employee sued in federal court, alleging employment discrimination. The employer moved to dismiss the complaint and to compel arbitration. The employee alleged that the entire arbitration agreement was unconscionable and, thus, unenforceable. The employee, however, did not specifically challenge the enforceability of the delegation provision that gave to the arbitrator the power to decide the unconscionability defense.
Although the enforceability of an "agreement to arbitrate" (as opposed to the enforceability of a contract as a whole) is ordinarily a "gateway issue" for the court to decide, the district court held for the employer because the parties clearly and unmistakably delegated to the arbitrator the power to decide the enforceability issue in that case. That is, the parties by agreement clearly and unmistakably overrode the normal rule that enforceability of an arbitration agreement is for the courts to decide.
The 9th U.S. Circuit Court of Appeals reversed that decision.
In a 5-to-4 decision, the U.S. Supreme Court reversed, holding that (1) the enforceability of an arbitration agreement is by a clear and unmistakable agreement lawfully delegable to an arbitrator; (2) the agreement in that case met that standard; (3) the employee was therefore required to specifically challenge the enforceability of the delegation provision (instead of the agreement as a whole) to render the challenge an issue for the court to decide instead of the arbitrator; and (4) the employee's failure to specifically challenge the enforceability of the delegation provision itself meant that the district court correctly dismissed the case and compelled arbitration of the dispute.
Employers wishing to have arbitrators decide an arbitration agreement's enforceability should include specific clauses to that effect in their agreements. Conversely, employees wishing to avoid such clauses must specifically attack the enforceability of the delegation clause itself.
Texas Supreme Court Protects Arbitration Agreement from Parallel Litigation
In In re Merrill Lynch & Co., Inc. and Merrill, Lynch, Pierce, Fenner & Smith Incorporated, __ S.W.3d __ (June 25, 2010 slip op.), the Texas Supreme Court conditionally granted mandamus relief in favor of Merrill Lynch, staying litigation against it by a non-signatory company when that company's sister company that was a signatory to an arbitration agreement was also asserting identical claims that were potentially subject to a class action carve out from its arbitration agreement with Merrill Lynch, the defendant in both cases. The signatory company had been a party to a class action suit that was dismissed. The possibility remained, however, that the class action could be revived. Until that issue was resolved, it would not be possible to determine whether the signatory's claims would be required to be arbitrated. If the signatory's claims were to be arbitrated (i.e., there was no class action), the non-signatory's suit could not proceed until after the arbitration. (Conversely, if the signatory's claims were to proceed in a class action, the carve out would apply and the non-signatory could proceed with its litigation proceeding.)
In so holding, the Texas Supreme Court relied on its prior decision in In re Merrill Lynch Trust Co., 235 S.W.3d 185, 195 (Tex. 2007) in which it held that where "the same issues must be decided in both arbitration … and in court … the latter must be stayed until the former is completed." In so holding, the Supreme Court further held that
when an issue is pending in both arbitration and litigation, the Federal Arbitration Act generally requires the arbitration to go forward first; arbitration 'should be given priority to the extent it is likely to resolve issues material to this lawsuit.' This has been the practice in all the federal courts. (footnotes omitted).
In the present case, the court observed that the only factual difference from its prior decision was the class action carve out provision and the fact that whether the signatory would participate in a class action suit remained an undecided issue. Nonetheless, the Supreme Court based its mandamus relief on the fact that the class action issue necessarily would be resolved in the future and that protecting Merrill Lynch's bargained for arbitration right took priority over the non-signatory's desire to proceed with its litigation claim.
Both cases reflect the trend among the majority of U.S. courts to enforce arbitration agreements based on traditional contract law principles.
The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.
You may use the wildcard symbol (*) as a root expander. A search for "anti*" will find not only "anti", but also "anti-trust", "antique", etc.
Entering two terms together in a search field will behave as though an "OR" is being used. For example, entering "Antique Motorcars" as a Client Name search will find results with either word in the Client Name.
AND and OR may be used in a search. Note: they must be capitalized, e.g., "Project AND Finance."
The + and - sign operators may be used. The + sign indicates that the term immediately following is required, while the - sign indicates to omit results that contain that term. E.g., "+real -estate" says results must have "real" but not "estate".
To perform an exact phrase search, surround your search phrase with quotation marks. For example, "Project Finance".
Searches are not case sensitive.