Incorporation of AAA Rule 7 as Clear and Unmistakable Evidence: Georgia Court of Appeals Decides Arbitration Question of First Impression
by Andrew Flake
Parties fighting over the meaning of an arbitration clause often begin with the question of who interprets the clause, making decisions on validity and scope: Is it a trial court, or is it the arbitrator? Most arbitral institutions answer this question in their applicable...
Agentic AI and the Courts: Perplexity v. Amazon and the User-Tool Dichotomy
by Andrew Flake
I don’t worry that my laptop will lie to me, or that Microsoft Word will wake up unwilling to work. They are tools, not sentient. They lack the ability to make decisions. So too, with most instances of AI, in most settings, we provide...
Ordering off the Menu: Georgia Supreme Court Clarifies When Equitable Estoppel Applies to Compel Non-Party to Arbitrate
by Andrew Flake
Arbitration is a creature of contract. The principle is familiar enough to state in a breath: no party is bound to arbitrate a dispute it has not agreed to arbitrate. The harder questions live at the margins — and one of them is when,...
Claude is Not Your Lawyer: Southern District of New York Issues Opinion on Attorney-Client Privilege and Client-Generated AI Outputs
By Andrew Flake
Under what circumstances will a party's case-related communications with an AI platform be attorney-client privileged or protected as work product? In United States v. Heppner, issued February 17, 2026, Judge Jed Rakoff of the Southern District of New York considered this question – so...
Collecting the Candles and Flashlights: Advance Planning for Mediated Settlement
by Andrew Flake
This past weekend much of the country experienced a winter storm, ranging in effects from snow, to freezing rain, to extreme cold. In all cases, a major concern was losing power, which meant what is for many of us, a household ritual: the collection...
Unwrapped and Unboxed: 3rd Circuit Gives Functional Read to FAA Section 1 “Contracts of Employment
by Andrew Flake
I'll confess to being a gadget person, interested in any new bit of technology or device, whether for home, office, or travel, and my family's stocking stuffer items for me usually reflect that. Last year, it was a pineapple slicing tool, this year, a...
Drafting Arbitration Clauses: Essential Elements
by Andrew Flake
Drafting the arbitration clauses -- the why and the how -- is a fundamental topic worth revisiting. The arbitration clause serves as the gateway to dispute resolution, and its quality determines whether parties can efficiently resolve their disagreements or face costly jurisdictional battles.
Jurisdictional Anchors Aweigh: Supreme Court to Resolve Circuit Split on Post-Badgerow Jurisdictional Question
by Andrew Flake
Just last Friday, the Supreme Court took up review of an arbitration question with enormous implications for where, in state courts or federal district courts, certain applications to confirm arbitration awards will need to be filed.
First, the background. Before a...
Nalco Company, LLC v. Bonday: A Case Study in Standards of Post-Award Review
by Andrew Flake
Courtesy of a new puppy, I possess a large and growing collection of unmatched shoes. Some have laces or tongues gnawed, some have holes chewed in them, some have been spirited away and are missing entirely. By any measure, multiple lost or damaged shoes...
Fourth Circuit Considers Arbitration Waiver, Permitting Claims under Servicemembers Civil Relief Act (SCRA) to be Arbitrated
by Andrew Flake
A new Fourth Circuit opinion reminds us of the analysis required when parties arguing that federal statutory claims should be excluded from arbitration. In Espin v. Citibank, N.A., returning military personnel brought claims under the Servicemembers Civil Relief Act (SCRA), a statute providing credit-related...