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Latest Effort Underway to Remake Arbitration Law in Conn.

Submitted by Amaris Elliott-Engel on Sat, 03/04/2017 - 18:34

My latest piece for the Connecticut Law Tribune:

Legislation that would provide a wholesale update to Connecticut arbitration law for the first time in a half-century, an effort that's failed several times already, recently received a hearing in the General Assembly and appears ready to gain traction.

Advocates of adopting the model "Revised Uniform Arbitration Act" (RUAA) are hoping that 2017 will be the year the legislation will finally be passed.

By the count of Barry Hawkins, the bill has been introduced four times since the National Conference of Commissioners on Uniform State Laws promulgated the law in 2000.

Hawkins, a partner with Shipman & Goodwin who testified in favor of the bill on Monday on behalf of the Connecticut Bar Association's Alternative Dispute Resolution Section, said proponents of the bill have made tweaks to address concerns of the groups that were opposed to the bill in the past.

For example, labor unions were concerned that the proposed law would affect their collective bargaining agreements and their grievance processes, Hawkins said. The proposed law makes it clear that collective bargaining agreements are excluded, he said.

Other opponents were concerned that the law would pre-empt punitive damages, but advocates have made clear that—just like Connecticut's current arbitration law—judges and arbitrators still have the ability to award punitive damages if the law provides for it, said Hawkins, who also is a member of the Uniform Law Commission and helped draft the RUAA.

"Hopefully all the opposition has been satisfied," Hawkins said.

Houston Putnam Lowry, a lawyer with Polivy, Taschner, Lowry & Clayton who also testified in favor of the RUAA, said he thinks the legislation may have legs this year because House Rep. William Tong, one of the co-chairmen of the Judiciary Committee, has expressed an interest in enacting legislation to make the state's legal environment friendlier to businesses.

Tong previously introduced an omnibus bill that proposed adopting a version of the Delaware Rapid Arbitration Act, but the Bar Association's ADR section asked Tong to consider support for the RUAA instead, Lowry said.

The Delaware law prevents parties from designing the arbitration process they want to use, while the RUAA fills in the gaps in arbitration agreements that parties have already agreed on in principal, Lowry said.

Tong did not respond to a request for comment.

Harry N. Mazadoorian, an arbitrator and a senior fellow at Quinnipiac University School of Law's Center on Dispute Resolution, said the time is ripe to reform Connecticut's arbitration law because the state is in a fiscal crisis and Connecticut courts are facing budget cuts.

"This is the one time we don't want to discourage arbitration as an alternative to our courts," Mazadoorian said.

One of the advantages of the RUAA is that it would explicitly put on the books that arbitrators are empowered to grant preliminary relief, including provisional remedies, Lowry said. Right now, prejudgment remedies are authorized only by case law, which has put a "judicial gloss on the statute," Lowry said.

The law also would require arbitrators to disclose "facts which might call the arbitrator's impartiality into question," Lowry said in his written testimony.

The RUAA also provides default positions if parties have not already addressed those positions in their arbitration agreements, Mazadoorian said.

The bill enforces arbitration agreements contained in electronic documents, he added.

Raphael L. Podolsky, public policy advocate for Connecticut Legal Services, proposed an amendment to the RUAA that would prevent the use of "rights enforcement disabling clauses" in all consumer contracts, whether they are enforced through the courts or arbitration.

Podolsky said in his written testimony that such clauses restrict consumers from getting punitive damages, fail to provide for the waiver of fees and costs for consumers who can't afford them, and force consumers into forums that are geographically distant and more costly than their home state courts.

Podolsky also said applying the amendment to consumer contracts that are enforceable through arbitration or through the courts would avoid a Connecticut version of the RUAA being deemed pre-empted by the Federal Arbitration Act.

The proposed amendment is based on something similar in New Mexico, Podolsky said.

Hawkins and Mazadoorian both said they think the proposed amendment Podolsky raised would run afoul of the FAA itself.

Most alternative dispute providers have built-in protocols against unfair consumer arbitration provisions, Mazadoorian said. For example, many providers won't accept consumer cases requiring consumers to travel from Connecticut to Washington in order to pursue their dispute, or won't accept cases requiring substantial sums in arbitration fees, he said.

If enacted, the RUAA would go into effect Oct. 1.

Eighteen states and the District of Columbia have enacted the RUAA.


Legislation to Protect LGBT Workers Stalling Nationally

The International Business Times' Cole Stangler reports that 31 states in the U.S. don't have any legal protections for LGBT employees from being fired by their bosses. And things aren't getting better. "Less than a year after same-sex couples won marriage rights at the Supreme Court, and as public opinion becomes increasingly gay-friendly, efforts to extend workplace discrimination laws to LGBT people are struggling to gain traction across the country," Stangler reports.

Heather Cronk, co-director of GetEqual, a LGBT advocacy group, told Stangler that focusing on getting same-sex marriage imperiled the possibility of the success of antidiscrimination laws: "'Marriage was centered around these heteronormative stories that people could get into and identify with. With nondiscrimination, it’s a totally different ballgame.”'


California Governor Vetoes Drone Privacy Bill

California Governor Jerry Brown has vetoed a bill that would have banned drones being flown lower than 350 feet above private property without permission, Wired's Klint Finley reports. In his veto message, Brown wrote that the bill "'could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.”'

Press Groups Ask California Governor to Veto Bill Limiting Drones

A coalition of media organizations have asked California Governor Jerry Brown to veto a bill that would make it illegal to fly drones less than 350 feet above private property "'without express permission of the person or entity with the legal authority to grant access or without legal authority,'" The Hill's David McCabe reports. The coalition said the law would impede newsgathering and violate the First Amendment.

California Legislators Approve Multiple Bills Restricting Drone Flights

The California Senate has just passed a bill that would restrict drones from being flown over wildfires, Los Angeles Times' Patrick McGreevy and Melanie Mason report. Other measures are being considered to restrict drone flights over prisons, schools and homes. For example, there is a bill on the governor's desk that would "criminalize the act of operating an unmanned aircraft system less than 350 feet above ground over private property without the consent of the property's owner."

After King v. Burwell, Business Groups Push to Reform Affordable Care Act

Now that the U.S. Supreme Court has upheld the use of tax subsidies for people buying health insurance on the federal exchange in King v. Burwell, business groups are going to press Congress to modify elements of the Affordable Care Act, Hospitals & Health Networks Daily's Marty Stempniak reports: "Trade groups representing employers — such as the National Retail Federation and American Benefits Council — urged Congress to 'seize the opportunity' and address what they say are shortcomings in the law. Those include repealing the employer mandate and Cadillac tax on pricier plans, reforming reporting requirements, and upping the 30-hour work week standard for eligibility to 40 hours."

Healthcare advocates also are going to push for the expansion of Medicaid in the Republican-led states that have refused to allow for it. Dr. John Ayanian, director of the Institute for Healthcare Policy and Innovation at the University of Michigan, told Stempniak that federal regulators may allow more flexibility in Medicaid programs, which could entice more states to participate in Medicaid expansion.

Framers of Health Care Law Say Four Words Imperiling Its Future Were Mistake

The U.S. Supreme Court is considering whether low-income taxpayers can only receive subsidies for health insurance if they purchased their policies on state-run insurance exchanges, not federal exchanges. The four words at issue in the Affordable Care Act? "Established by a state." The New York Times' Robert Pear reports that the two dozen Democrats and Republicans involved in writing the law say those four words were not meant to make tax subsidies in the law available only in states that established their own health insurance marketplaces.

For example, former Senator Jeff Bingaman, Democrat of New Mexico, said the words in dispute are a "'drafting error."' Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee, told Pear that, when senators drafted a backup plan to allow the federal government to establish an exchange in any state that didn't have its own, it was an oversight to not include a cross-reference to the section of the tax code providing subsidies.

But Pear notes that some Supreme Court justices, including Justice Antonin Scalia, interpret laws based not on "'what Congress would have wanted, but what Congress enacted.”'

Nevada Legislators Mulling Drone Privacy Bill

Legislators in Nevada are considering a bill that would regulate drones, including the protection of privacy interests, the Associated Press' Riley Snyder reports. The bill would set "250 feet as the lowest level a drone can fly before trespassing, with some exceptions, and it requires a warrant for certain police observations by a drone on a private home," Snyder reports. The bill passed out of Assembly, but the Senate has not yet taken action.

Alabama Legislators Move to Shield Brand-Name Drugmakers from Generic Liability

Alabama lawmakers have passed a bill to shield brand-name drug companies and medical-device manufacturers from liability for generic versions of their products, Reuters' Brendan Pierson reports. Last year, the Alabama Supreme Court ruled that drugmakers and device makers could face liability for innovating a product that harmed patients who take generic versions of their drugs.

Alabama Governor Robert Bentley is expected to sign the bill.

Tennessee Moves to Ban Drones Over Jails and Public Events

According to the Associated Press, the Tennessee Senate has voted to ban drones from recording jails as well as ticketed events with more than 100 people in attendance. The law was requested by the NFL's Tennessee Titans.

A different version of the bill passed in the House and a compromise version has to be negotiated, the AP reports.


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