Jottings By An Employer's Lawyer

Thursday, December 16, 2004

Federal Court Has Authority to Enforce Forum Selection Clause Under the FAA


Litigation about arbitration continues to grow, even as more of the substantive decisions are ultimately decided by arbitrators. In Sterling Financial Investment Group, Inc. v. Hammer (11th Cir. 12/16/04) [pdf] there was no dispute that the matter was to be submitted to arbitration, the question was where. Hammer had been hired by Sterling and moved to Florida. Shortly after he began work he was fired. He returned to Houston and initiated arbitration by filing with the NASD, requesting a Texas panel and the hearing in Texas. Sterling protested, arguing that the employment agreement which contained the arbitration clause provided that venue would be in Florida. When the NASD failed to agree and began to proceed in Texas, Sterling filed suit in Florida seeking to enjoin the Texas proceeding and compelling arbitration in Boca Raton, Florida. The district court agreed and now so has the appeals court.

Hammer's argument was that since all parties agree that arbitration is proper, the arbitrators should decide the venue and the federal courts should not "micro-manage" all the issues that could arise in an arbitration proceeding. Although conceding there was some support for that argument in the NASD rules, the Court did not agree. Instead it found the answer in the language of the Federal Arbitration Act itself:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement. .. . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. (emphasis in original opinion)
In addition to the language of the statute, the Court could look to a similar decision by the 2nd Court in Bear, Stearns & Co. v. Bennett, 938 F.2d 31 (2d Cir. 1991). In that case it was a Florida litigant who was forced to go to New York, the forum contained in the arbitration agreement.

Even in arbitration it appears, location is key, or at least something worth fighting about.

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