Federal Appellate Case Summaries

• Pages: 50-54
• Date: 01 March 2023
• Author: Manuel Farach
• Subject Matter: Derecho Público y Administrativo

March/april 2023

50

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Published in Probate & Property, Volume 37, No 2 © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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By Manuel Farach

Manuel Farach is a shareholder at Mrachek

Fitzgerald Rose Konopka Thomas & Weiss,

P.A., in West Palm Beach, Florida, and a

member of the Section’s Marketing and

Social Media Committee.

This article provides a brief sum-

mary of the most signif‌icant

opinions issued by federal

appellate courts during the period

July through December 2022, which

addressed, among other topics, con-

tracts, governmental takings, COVID

shutdown orders, arbitration, bank-

ruptcy, and consumer law.

Arbitration

We start, as we oen do, with arbitra-

tion. Questions regarding whether

parties agreed to arbitrate are common,

and we f‌ind several cases on this issue.

The Third Circuit held that whether

parties agreed to arbitrate is the prin-

cipal inquiry in an arbitration dispute,

and, accordingly, a court must deter-

mine whether two competing contracts

require arbitration even when the

arbitration itself is subject to a “gate-

way” clause permitting the arbitrators

to determine their own jurisdiction.

Field Intel. Inc. v. Xylem Dewatering

Sols. Inc., 49 F.4th 351 (3d Cir. 2022).

And although emails may consti-

tute an “exchange of letters” under the

Convention of the Recognition and

Enforcement of Foreign Arbitral Awards

(the New York Convention) sucient to

constitute an agreement to arbitrate, the

emails must demonstrate an unequiv-

ocal agreement to arbitrate. Jiangsu

Beier Decoration Materials Co., Ltd. v.

Angle World LLC, 52 F.4th 554 (2d Cir.

2022). A curious case out of the Ninth

Circuit held that no agreement to arbi-

trate was formed by use of a debit card,

which card was involuntarily created as

a method to return money to released

inmates whose cash was conf‌iscated

at the time of arrest and incarceration.

Reichert v. Rapid Invs., Inc., 56 F.4th 1220

(9th Cir. 2022).

The arbitration process itself also

produced some cases during our most

recent time frame. The Second Cir-

cuit, applying New York law, held that

attachment in aid of arbitration can be

used during the arbitration process, if

permitted by the controlling law of the

arbitration, and that New York law per-

mits a judge to consider nonstatutory

factors (e.g., extraordinary hardship) on

a motion to vacate or modify an attach-

ment. Iraq Telecom Ltd. v. IBL Bank

S.A.L., 43 F.4th 263 (2d Cir. 2022). The

Third Circuit issued two cases of inter-

est, holding that failure to produce

evidence during the discovery phase

of arbitration proceedings can con-

stitute sucient fraud to vacate the

arbitration award, France v. Bernstein,

43 F.4th 367 (3d Cir. 2022), and that a

trial court does not abuse its discretion

by dismissing a case with prejudice

under Federal Rule of Civil Procedure

41 where a plainti’s refusal to follow

orders to arbitrate the dispute makes

adjudication of the case impossible.

R & C Oilf‌ield Servs. LLC v. Am. Wind

Federal

Appellate Case

Summaries