Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

BMD Appellate Win Clarifies Waiver of Contractual Right to Arbitrate

Client Alert
April 12, 2021

Brennan, Manna & Diamond, LLC attorneys David M. Scott, Lucas K. Palmer, and Krista D. Warren prevailed before the United States Court of Appeals for the Sixth Circuit regarding if/when a party waives a contractual right to arbitrate. Borror Property Management, LLC v. Oro Karric North, LLC, No. 20-3146 (the “Decision”).

BMD clients Oro Karric North, LLC and its affiliates (collectively, “Oro”) entered into a property management agreement with Borror Property Management, LLC (“Borror”), in which Borror agreed to manage several apartment properties owned by Oro. The property management agreement stated that, “[i]f either party shall notify the other that any matter is to be determined by arbitration,” the parties would proceed to arbitration unless the matter could be resolved.

Oro came to believe that Borror breached the management agreement, so Oro sent various correspondence and demand letters to Borror prior to filing suit/arbitration (what Judge Readler, author of the Decision, describes as the “legal equivalent of a shot across the bow”). Oro went so far as to threaten litigation. Borror declined to compromise and instead filed suit against Oro in the United States District Court for the Southern District of Ohio. Oro promptly moved to compel arbitration, but the District Court denied, holding that Oro’s pre-suit threat to litigate constituted a waiver of Oro’s contractual right to require arbitration. Oro appealed.

On appeal, Borror argued that the District Court was correct in deeming Oro’s pre-litigation letters to constitute a waiver of its contractual right to arbitrate. But the Sixth Circuit Court of Appeals notes that strong public policy considerations favor arbitration, and “the exchange of letters between parties as a prelude to more formal dispute resolution is a time-honored tradition.” Further noting that Oro almost immediately moved to compel arbitration after the suit was filed, the Sixth Circuit holds that Borror was not prejudiced and sending a pre-suit “posturing” letter does not constitute a waiver.

Takeaway: This significant precedent has already been cited as authoritative in numerous decisions regarding if/when parties waive the right to arbitrate. Knowing how far one may push in negotiations can make the difference between resolution or impasse and help a party control its own destiny in a conflict scenario.

For any litigation or arbitration questions, please contact Litigation Member David Scott at dmscott@bmdllc.com.

David ScottChristopher CalpinBrennan Manna Diamond6th Circuit Court of AppealsLitigation
Client Alert

Starting an Advanced Practice Provider Practice

May 13, 2024Advanced practice providers (APPs), which includes non-physician providers such as nurse practitioners, physician assistants, and nurse anesthetists, commonly start their own healthcare practices. Practices may provide, for example, service offerings such as primary care, anesthesiology, mental health, and aesthetics (medical spas). However, there are a number of considerations and steps that must be taken for APPs to compliantly function independently.Client Alert

FTC Increases Targeting of Companies Lacking Cyber Protection

May 13, 2024The Federal Trade Commission (FTC) recently released a comprehensive cybersecurity report outlining key findings and recommendations based on emerging threats, trends in data breaches, and strategies for businesses to enhance their cybersecurity posture observed over the last year.Client Alert

New Federal Medical Conscience Rule and Its Implications

May 13, 2024The Department of Health and Human Services Office for Civil Rights issued a Final Rule to clarify protections for healthcare providers who refuse services based on religious or moral beliefs. This includes protection against discrimination for refusing procedures like assisted suicide or abortion. The OCR can receive complaints, conduct investigations, and enforce these protections. Entities are encouraged to update policies accordingly and display a model notice provided by the OCR.Client Alert

Marijuana Reclassification and APRN/PA Prescribing

May 7, 2024Marijuana is expected to be reclassified by the Drug Enforcement Administration (DEA) from a Schedule I controlled substance to a Schedule III controlled substance as a result of efforts by the Biden administration.Client Alert

Federal Trade Commission Voids Non-Compete Agreements Nationwide

April 30, 2024On April 23, 2024, the U.S. Federal Trade Commission (“FTC”) issued its Final Rule containing regulations impacting non-compete agreements across the country for all employees. The Final Rule implements some of the most impactful changes to employment law during this century. The Final Rule will take effect 120 days from its publication in the Federal Register, which we expect to occur within the next few weeks.
Older posts