The Supreme Court on May 23, 2022, in its decision in Morgan v. Sundance, Inc., rejected the “arbitration specific waiver rule demanding a showing of prejudice” to the party opposing the petition to enforce the arbitration agreement. That rule had been followed for decades by nine Circuits.[1] Post Morgan, the analysis reverts to the standard contract waiver analysis “focus[ing] on the actions of the person who held the right; … [rather than] the effects of those actions on the opposing party.”[2] Although the case is an employment matter, the new rule applies whenever a party seeks to stay litigation and send the matter to arbitration under Sections 3 and 4 of the Federal Arbitration Act in essentially all commercial litigation contexts.
Continue Reading Supreme Court Rejects Prejudice Element of Waiver Analysis When Enforcing Agreements to Arbitrate

In recent weeks sanctions against Russia’s central bank have prompted renewed buzz around the issue of sovereign immunity.  The interpretation of the Foreign Sovereign Immunities Act (“FSIA”), specifically with relation to central banks, may become particularly important as sanctions continue to mount against Russia and its central bank.  A recent decision from a District of Columbia federal court fits a pattern of courts granting protection to central banks under FSIA.  The decision also deepened the split among federal courts regarding the authority required to waive immunity, which we previously wrote about here.
Continue Reading Federal Court Addresses Central Bank Immunity and Authority to Waive Under Foreign Sovereign Immunities Act