Federal Case Summaries
Arbitration The circuits are absorbing and implementing last year’s Supreme Court decisions, and foremost is the Court’s decision in Morgan v. Sundance, Inc., 142 S. Ct. 1708, 212 L. Ed. 2d 753 (2022), which held that whether a party has waived its right to arbitrate is examined under the same conditions as waiver of any other contract and an examining court may not add additional issues or conditions not generally applicable to waiver of other contractual provisions. The Third Circuit in White v. Samsung Electronics America, Inc., Case No. 22-1162 (3d Cir. 2023), and the Ninth in Hill v. Xerox Business Services, LLC, Case Manuel Farach is a shareholder at Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., in West Palm Beach, Florida, and is the former Chair of the ABA’s Real Property Litigation Group.
No. 20-35838 (9th Cir. 2023), appear to have fully adopted Morgan. The Ninth also held that the Federal Arbitration Act preempts a state rule that discriminates against the formation of an arbitration agreement, even if that agreement is ultimately enforceable, Chamber of Commerce of the United States of America v. Bonta, Case No. 20-15291 (9th Cir. 2023), and rejected a modified click-wrap provision in Johnson v. Walmart Inc., Case No. 21-16423 (9th Cir. 2023), when it held that an in-store purchase affiliated with an online purchase, which online purchase contained an arbitration agreement, is not required to be arbitrated when the in-store purchase did not contain an arbitration agreement. Bankruptcy There are two big decisions of note in the bankruptcy context. The Supreme Court held in MOAC Mall Holdings LLC v. Transform Holdco, LLC, Case No. 21–1270 (2023), that the statutory mootness provision of 11 U.S.C. § 365(m) is not jurisdictional and—absent a stay order—can be reviewed on appeal. This decision is concerning to many involved with real estate coming out of bankruptcy courts, as the statutory mootness principle gave comfort that the bankruptcy court’s decisions could not be reversed; that approach is not so clear after the MOAC decision. Also, of interest is In re LTL
Published in Probate & Property, Volume 37, No 6 © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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November/December 2023
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his article provides a brief summary of the most significant opinions issued by federal appellate courts during the period January through April 2023, which covered, among other topics, contracts, governmental takings, COVID shutdown orders, arbitration, bankruptcy, and consumer law.
