On behalf of our entire section, I first want to welcome Andy Emerson as our new chair for the coming year. Andy has been a long-time member of our Section and has contributed by writing articles for this newsletter, holding leadership positions, such as co-chairing the Communications Committee for several years, serving on our leadership council for many more, and in numerous other ways. He already demonstrated his ability to lead our Section to new heights by helping to set an agenda in our recent fall meeting for continued growth and vibrancy of our membership and the intellectual content we create.
January 27, 2023 Columns
Editor’s Column
William R. Drexel
As an in-house counsel for a telecom company for many years, I first met Andy through this Section. He and his firm demonstrated an expertise in telecom law that resulted in significant work by Andy for us over the years. That experience is not unique and reflects one of the real values of our Section. It is composed of a significant number of in-house counsel as well as private practitioners, which offers an opportunity for creating relationships that can lead to mutually beneficial economic arrangements that can last many years.
This issue of Infrastructure features an article by Jay Range analyzing several of the six arbitration decisions by the Supreme Court this past term. Jay describes how the Court in the three of the decisions rendered case-specific rulings that seem destined to create future work for the Court. One involved the application of the transportation worker exemption under the Federal Arbitration Act. The Court declined to adopt a bright line test for what constitutes a transportation worker, leaving it up to case-by-case determinations of the job functions of the employees. That likely will lead to continued litigation and a future writ over an issue of importance to many companies within the ambit of our section.
The second case involved the issue of whether a company had waived its right to arbitrate by failing to assert the right to arbitrate before filing a motion in federal court. The Court ruled that waiver was not a proper basis to deny arbitration but failed to delineate the proper standard for determining the propriety of the delay. This also will lead to continued litigation and a future writ to resolve the standard.
Finally, in the third case, the Court ruled that federal courts do not have jurisdiction to confirm or vacate an arbitral award if they would have had jurisdiction on the underlying dispute. Instead, such cases must be filed in state court, which likely will lead to more collateral litigation and cases the Supreme Court will have to resolve due to greater state hostility to arbitration. The final case Jay analyzes invalidates class action lawyer initiatives to use the California Private Attorneys General Act to circumvent parties’ agreements to resolve disputes through private individual arbitration.
In addition to Jay’s article, this issue of Infrastructure contains an abstract summary of an article available online written by Tony Terrell. It involves the meaning of “fair value” under the Trust Indenture Act, which is an issue particularly relevant to regulated industries within the scope of our Section.
We hope you enjoy this issue as well as our associated podcasts. If you have suggested topics for future issues or podcasts or would like to submit an article for consideration, please contact me at [email protected].