{"id":10617,"date":"2019-12-13T18:40:54","date_gmt":"2019-12-13T18:40:54","guid":{"rendered":"https:\/\/www.steinberglawfirm.com\/?p=10617"},"modified":"2019-12-13T18:40:57","modified_gmt":"2019-12-13T18:40:57","slug":"arbitraje-es-una-cosa-que-no-es-mayor-en-texas","status":"publish","type":"post","link":"https:\/\/www.steinberglawfirm.com\/es\/blog\/arbitration-is-one-thing-that-isnt-bigger-in-texas\/","title":{"rendered":"El arbitraje es una cosa que no es mayor en Texas"},"content":{"rendered":"\n

In a decision issued at the end of November in Robinson v. Home Owners Management\nEnterprises, Inc.<\/em>,[1]<\/a>\nthe Texas Supreme Court addressed whether the availability of class arbitration\nunder the Federal Arbitration Act is an issue for the arbitrator or the court\nto decide and whether an arbitration agreement permitted class\narbitration.  The Court held that the\navailability of class arbitration is a gateway issue for a court to decide unless\nthe arbitration agreement expressly and unmistakably provides for the issue to\nbe decided by an arbitrator.  The Court\nalso held that the arbitration agreement at issue did not permit class\narbitration because an arbitration agreement\u2019s silence or ambiguity as to the availability\nof class arbitration is insufficient to permit class arbitration.<\/p>\n\n\n\n

The underlying dispute arose from construction defect claims\nbrought against a home warranty company. \nThe homeowners brought claims against the warranty company for defects\nin the construction of their home, and that dispute grew into a putative class\naction on the overly broad releases the warranty company required homeowners to\nsign before the warranty company would perform any repairs to a home.  After the home purchasers filed a lawsuit for\ndefects in their home, the home warranty successfully moved to compel\narbitration.  The homeowners then moved\nto amend to add class action claims alleging the warranty company refused to\ncover home repairs it was obligated to cover unless homeowners would sign\nreleases of claims.  The home warranty\ncompany was successful in having the trial court dismiss the class action\nclaims, and the homeowners appealed.<\/p>\n\n\n\n

The Court contrasted gateway arbitrability issues with\nprocedural or subsidiary issues and defined gateway arbitrability issues as\nwhether a valid arbitration agreement exists and whether the arbitration\nagreement applies to a particular type of claim.  The Court found the distinction and having\ncourts decide gateway arbitrability issues necessary to prevent forcing parties\nto arbitrate disputes they did not agree to arbitrate.  The Court noted that the determination and\ndelegation of that determination takes on greater importance given the narrow\nappellate review available for arbitrators\u2019 decisions.<\/p>\n\n\n\n

The Court acknowledged it previously held, relying on the\nUnited States Supreme Court\u2019s decision in Green\nTree Financial Co. v. Bazzle<\/em>,[2]<\/a>\nthat class action arbitrability is an issue for the arbitrator to decide.  Finding the United States Supreme Court\u2019s opinions\nsubsequent to the Bazzle <\/em>plurality\nopinion cast doubt on the import of Bazzle<\/em>\nfor class arbitrability, the Court reconsidered and overruled its earlier\nopinion holding class arbitrability is an issue for the arbitrator.  The Court stated that since Bazzle<\/em> the \u201cjurisprudential landscape\nhas evolved to provide a clearer, and distinctly different perspective\u201d because\nthe US Supreme Court had since \u201cissued two opinions emphasizing that whether\nclass arbitration is a gateway or subsidiary question remains an open question\nthat was not answered by Bazzle<\/em>.\u201d<\/p>\n\n\n\n

The Court relied on the US Supreme Court\u2019s opinions in Stolt-Nielsen<\/em>[3]<\/a> and Oxford Health Plans<\/em>,[4]<\/a> as explicitly clarifying that Bazzle<\/em> did not state federal law on class arbitrability as it being an issue for the arbitrator.\u00a0 The Court also relied on the numerous federal circuit court opinions issued since Stolt-Nielson<\/em> and Oxford Health Plans<\/em>, all holding that class arbitrability is a gateway issue for an arbitrator.<\/p>\n\n\n\n

The Court viewed earlier decisions in other jurisdictions\ndeciding the issue as considering two lines of reasoning: (1) that class\narbitrability is a contract formation issue because it goes to what claims and\nparties are subject to the agreement, and (2) that class arbitration is\nfundamentally different from bilateral arbitration to the extent that agreeing\nto bilateral arbitration is not an agreement to class arbitration.  On the fundamental difference rationale and\nas other courts have reasoned, the Court reasoned that class arbitration is\nfundamentally different from bilateral arbitration and this fundamental\ndifference renders class arbitration outside parties\u2019 agreement to arbitrate\nunless the parties explicitly agreed to class arbitration.  Specifically, the Court held \u201cthe question of\nclass arbitration is more akin to what type of controversy shall be arbitrated\u2014a question for the courts\u2014not a procedural question presumptively\nfor the arbitrator.\u201d<\/p>\n\n\n\n

Turning to the gateway question of class arbitrability, the Court relied on Stolt-Nielsen <\/em>and Lamps Plus, Inc. v. Varela<\/em>[5]<\/a> as establishing that a court cannot compel class arbitration under the FAA when an agreement is only silent or ambiguous as to the availability of class arbitration.\u00a0 Instead, for class arbitration to be available, an arbitration agreement must expressly provide for class arbitration. While maybe groundbreaking in terms of Texas arbitration law, the Robinson <\/em>decision does not break any new ground for arbitration under the FAA.\u00a0 Rather, the decision represents one more nail in the coffin for class arbitration, joining with the multiple federal circuit courts in holding that the availability of class arbitration is a gateway arbitrability issue for courts to decide.\u00a0 As required, the decision also follows the precedent set by Lamps Plus<\/em>, which was covered previously here<\/a>.\u00a0 With courts determining the availability of class arbitration, a clear presumption by courts against class arbitration, and the requirement that an arbitration agreement expressly provide for class arbitration for it to be available, class arbitration seems dead.
<\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> Robinson v. Home Owners Management Enterprises, Inc.<\/a><\/em>, — S.W.3d —, 2019 WL 6223128 (Tex. Nov. 22, 2019).<\/p>\n\n\n\n

[2]<\/a> 539 U.S. 444 (2003).<\/p>\n\n\n\n

[3]<\/a> Stolt-Nielsen S.A. v. AnimalFeeds Intl. Corp.<\/em>, 559 U.S. 662 (2010).<\/p>\n\n\n\n

[4]<\/a> Oxford Health Plans LLC v. Sutter<\/em>, 569 U.S. 564 (2013).<\/p>\n\n\n\n

[5]<\/a> Lamps Plus, Inc. v. Varela<\/em>, — U.S. —, 139 S. Ct. 1407 (2019).<\/p>\n","protected":false},"excerpt":{"rendered":"

In a decision issued at the end of November in Robinson v. Home Owners Management Enterprises, Inc.,[1] the Texas Supreme Court addressed whether the availability of class arbitration under the Federal Arbitration Act is an issue for the arbitrator or the court to decide and whether an arbitration agreement permitted class arbitration.  The Court held…<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[289],"tags":[],"class_list":["post-10617","post","type-post","status-publish","format-standard","hentry","category-construction-defect-case-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/posts\/10617","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/comments?post=10617"}],"version-history":[{"count":0,"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/posts\/10617\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/media?parent=10617"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/categories?post=10617"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.steinberglawfirm.com\/es\/wp-json\/wp\/v2\/tags?post=10617"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}