Last year, around this time in fact, we wrote about the Federal Arbitration Act and the effect of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), on an argument under Wisconsin law about the unconscionability of an arbitration clause that waived a right to classwide proceedings. That case was Cottonwood Financial, Ltd. v. Estes, 2012 WI App 12, and, after an order from Wisconsin’s Supreme Court summarily disposing of the petition for review in the wake of Concepcion, the court of appeals held that the FAA preempted the unconscionability argument, ensuring that those arbitration clauses would be enforceable. Now Wisconsin’s Supreme Court has another opportunity to address Concepcion and FAA preemption in a recent certification from Wisconsin’s court of appeals.Continue reading this entry
In La Crosse Tribune v. Circuit Court for La Crosse County, No. 10AP3120 (Wis. Ct. App., Mar. 15, 2012), the Court of Appeals left a newspaper seeking a statutory fee award for its success in obtaining access to public records in a trick box with no apparent way out.
In Marlowe v. IDS Property Cas. Ins. Co., No. 11AP2067 (Wis. Ct. App. Mar. 13, 2012), the Court of Appeals, resolving an issue of first impression in Wisconsin, held that a party to an arbitration under the Wisconsin Arbitration Act, Wis. Stat. ch. 788, may not, while the arbitration is pending, seek circuit court review of a decision by the arbitrators on the scope of discovery. As a separate and independent ground for its conclusion, the court held that, where arbitrators resolve a discovery dispute by interpreting a provision in the arbitration agreement, their decision is final and not subject to judicial review.
Ignoring established precedent from a superior tribunal is one way for a court to earn a sharp rebuke from a higher court. And that is precisely what happened in a consolidated decision today in Marmet Health Care Center, Inc. v. Brown, No. 11-391, and in Clarksburg Nursing Home & Rehabilitation Center LLC v. Marchio, No. 11-394, where the Supreme Court of the United States granted writs of certiorari to the Supreme Court of Appeals of West Virginia, vacated that court’s judgments, and remanded for further proceedings — a practice known as a “GVR,” drawn from the first letter of the three words “grant,” “vacate,” and “remand.”
Act 61 is a new statute that will take effect on November 24 and will apply to all actions commenced on or after that day. And it’s one you should be aware of — both for its effect on venue in the circuit courts of this state and for the unique changes it makes related to venue in the state’s court of appeals.