by Kenneth Starr
With the enactment of state and federal arbitration legislation, as well as appellate court opinions interpreting that legislation, there is little doubt that past judicial resistance to enforcing arbitration agreements is either waning or firmly in the past. However, with regard to awarding attorneys’ fees, there remains a tension between the interpretation of state and federal statutes that apply to arbitration proceedings that take place in Florida.
The relevant section of the Florida Arbitration Code (FAC) in effect with regard to arbitration agreements entered into through June 30, 2013,1 provided: “Fees and expenses of arbitration.—Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpires’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.”2
The seminal Florida case on the interpretation of the above provision is Turnberry Associates v. Service Station Aids, Inc., 651 So. 2d 1173 (Fla. 1995).3 The Florida Supreme Court found the FAC did permit the recovery of attorneys’ fees incurred in arbitration. However, the court expressly prohibited arbitrators from awarding such fees absent the parties’ mutual agreement to the contrary.4 In reaching this holding, the court cited with approval an earlier Florida appellate opinion: Pierce v. J.W. Charles-Bush Securities, Inc., 603 So. 2d 625 (Fla. 4th DCA 1992).
The Pierce court examined a decade of federal court opinions interpreting the application of the U.S. Arbitration Act, 9 U.S.C. §§1-14, which clearly enunciated the strong policy in favor of arbitration and prohibited the states from undercutting the enforceability of agreements covered by the act.5 After reviewing the federal history and acknowledging that the Supremacy Clause of the U.S. Constitution supersedes conflicting state laws, the Pierce court said:
In this case the arbitration agreement is included in a stockbroker’s account agreement. Although neither party has raised the subject, there is a question in our minds as to whether the margin account has been captured by USAA section 2, which applies the [a]ct’s provisions to any “contract evidencing a transaction involving commerce,” as defined in USAA section 1. Under the previously cited Supreme Court decisions, we have little doubt that Congress has barred the states from refusing to enforce arbitration awards under USAA which determine entitlement to attorney’s fees. The record being silent, however, on the application of USAA, we proceed to consider whether the comparable Florida law on arbitration, properly understood, precludes agreed arbitral determination of fee claims.6
It appears clear that neither the holding of the Florida Fourth DCA in Pierce nor the Florida Supreme Court in Turnberry controls a case in which the Federal Arbitration Act (FAA) is implicated. Nevertheless, in Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 263 (Fla. 2d DCA 2004), the Second DCA expressly stated “that even when the Federal Arbitration Act governs an arbitration agreement, Florida law controls the award of attorney’s fees.”
Acknowledging that arbitration “is a voluntary alternative method for the resolution of disputes,” the Turnberry court also stated that “the parties by agreement may waive their entitlement to have the circuit court decide the issue of attorneys’ fees and by so doing may confer subject matter jurisdiction upon an arbitrator to award attorneys’ fees.”7 (Emphasis added.) While the court injected the term “subject matter jurisdiction” into its decision, it is axiomatic that subject matter jurisdiction cannot be created by waiver.8
Another important point the Florida Supreme Court made absolutely clear is that only a trial court has jurisdiction to decide the waiver issue. “[T]rial courts…enjoy exclusive jurisdiction to resolve the factual issue of whether the parties have waived their statutory right to have the court decide the fee issue.”9 This becomes a very important point when dealing with a case involving interstate commerce or a maritime transaction, which triggers the application of the FAA.10
Congress enacted the FAA pursuant to its broad powers under the Commerce Clause. By its express terms, the FAA applies in those situations involving maritime transactions and commerce:
A written provision in any maritime transaction or a contract involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save any such grounds as exist at law or equity for the revocation of the contract.11
The U.S. Supreme Court interpreted the above provision as extending Congress’ powers to the full extent of the Commerce Clause.12 It has been suggested that the FAA “governs virtually every arbitration clause arising out of a commercial transaction.”13
At least one federal district court, in Ceco Concrete Construction v. J.T. Schrimsher Const. Co., Inc., 792 F. Supp. 109 (N.D. Ga. 1992), had the opportunity to address the above provision of the FAA and its effect on a Georgia statute. Similar to the FAC, the statute prohibits the award of attorneys’ fees in an arbitration forum. The Georgia statute reads: “Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.”14
The district court opinion held:
Once it is found…that the underlying contract involves interstate or foreign commerce or a maritime transaction, the Federal Arbitration Act preempts the field. (Citing Coenen v. R.W. Pressprich & Co., 453 F.2d 1209 (2d Cir. 1972)). Whatever court or tribunal, state or federal, is applying the law must then resort to the Federal Arbitration Act and the body of Federal common law construing it.15
There is no question that, in those cases in which the FAA conflicts with state law, federal law controls. As acknowledged by the Florida Fourth DCA in Merrill Lynch, Pierce, Fenner & Smith v. Melamed, 405 So. 2d 790 (Fla. 4th DCA 1981):
The supremacy clause requires us to resolve any inconsistency between the two laws in favor of the federally created right, and to subordinate Florida law to the supreme law of the land. We therefore hold that Florida courts must recognize and apply the Federal Arbitration Act and that arbitration agreements which are valid and enforceable under the federal law are also valid and enforceable in Florida courts.16
Florida appellate courts that have addressed the supremacy question in connection with arbitration proceedings have concluded there is no problem because there is no conflict or inconsistency between Florida and federal law.17
The Florida Legislature has expressly provided that attorney’s fees for time spent in arbitration are recoverable but only in the trial court upon a motion for confirmation or enforcement of the award. §682.11, Fla. Stat. (1989). In conformity with the statute, our court’s long-established policy has been to exclude the resolution of attorney’s fee demands from the arbitrator’s authority; Florida defers instead to the expertise of trial judges….In contrast, there is nothing in the federal code denominating arbitration as the favored means of establishing a reasonable attorney’s fee, nor does the code contain an express preempting provision. As the Supreme Court emphasized in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 477…(1989), the FAA does not “occupy the entire field of arbitration” so long as the relevant state law does not require judicial resolution of an issue the parties had agreed to submit to arbitration.18
In Moeller v. Cassedy, 364 F. Supp. 2d 1340 (N.D. Fla. 2005), the Northern District followed Turnberry, insofar as it mandated that courts have exclusive jurisdiction to decide the waiver issue, and held that “[w]hile the Federal Arbitration Act governs arbitration proceedings involving interstate commerce . . . Florida law provides the substantive basis for awarding attorney’s fees.”19
Federal courts, including the 11th Circuit in Paladino v. Avnet Computer Technologies, 134 F.3d 1054 (11th Cir. 1998), have consistently ruled that the “FAA does not ‘require parties to arbitrate when they have not agreed to do so,…nor does it prevent parties who do agree to arbitrate from excluding certain claims from the scope of their arbitration agreement.’”20
The real tension between the FAC and the FAA occurs when there is a dispute between the parties as to whether there was an agreement for the arbitrator to determine the amount of attorneys’ fees. The Florida Supreme Court, in Turnberry, stated unequivocally that trial courts have exclusive jurisdiction to determine if the parties have waived their statutory right to have the court award attorneys’ fees. The effect of this ruling gives any one litigant, after entering into a valid arbitration agreement, the power to require a court to determine whether the final disposition of the case, vis-à-vis attorneys’ fees, is to take place outside the arbitral forum.
The Turnberry court did not fully address the question of how or when that issue should be presented to a trial court. It is important to discuss the various ways a dispute that is subject to an arbitration agreement, may find its way to a trial court.21
For disputes that are subject to an arbitration agreement, there are two ways a case can be presented to a court prior to a completed arbitration: 1) When a claimant in a dispute is either unaware of, or unreceptive to, an arbitration agreement, the claimant may file a civil suit in an appropriate court. At that time, the respondent may answer by exhibiting the arbitration agreement and seeking a stay of the civil action, pending arbitration. 2) When a claimant in a dispute seeks arbitration initially by filing a demand for arbitration in the appropriate forum and the respondent does not agree the dispute is arbitral, the respondent may file a civil action and ask the court to stay the arbitration, pending the court’s determination on arbitrability.
There are also two ways a case can be presented to a court after a completed arbitration: 1) The party who is satisfied with the arbitration award can, if the opposing party fails or refuses to comply with the award, file a civil action seeking confirmation and enforcement of the arbitration award; 2) the party who is dissatisfied with the award can file a civil action seeking to have the award vacated or modified.
It is clear there is a significant conflict between the Florida Supreme Court’s interpretation and application of the FAC and the purpose and application of the FAA, as enunciated by the U.S. Supreme Court.
The U.S. Supreme Court stated in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 469 (1989): “[T]he FAA’s principal purpose is to ensure that private arbitration agreements are enforced according to their terms….”
Five years earlier, the Court in Southland Corp. v. Keating, 465 U.S. 1, 13 (1984), noted that “the purpose of the act was to assure those who desired arbitration and whose contracts related to interstate commerce that their expectations would not be undermined by federal judges, or…by state courts or legislatures.”
More recently in Preston v. Ferrer, 552 U.S. 346 (2008), the Court said:
As this Court recognized in Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984), the Federal Arbitration Act (FAA or Act), 9 U.S.C. §1 et seq. (2000 ed. and Supp. V), establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. The [a]ct, which rests on Congress’ authority under the Commerce Clause, supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration.22
In Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 24-25 (1983), the Supreme Court also held that “any doubts as to the scope of arbitral issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself, or an allegation of waiver, delay, or a like defense to arbitrability.”
“Section 2 [of the FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [a]ct.”23
Other federal courts, including the 11th Circuit in Advanced Bodycare Solutions v. Thione International, Inc., 524 F.3d 1235 (11th Cir. 2008), have stated that other purposes of the FAA include a desire to “relieve congestion in the courts and to provide parties with an alternative method of dispute resolution that is speedier and less costly than litigation.”24
The conflict between the FAC and the FAA involves a determination of whether the Florida Supreme Court’s interpretation of the FAC has added two significant impediments to the resolution of a dispute the parties voluntarily agreed to submit to arbitration by 1) designating the trial court as the presumed forum for awarding attorneys’ fees, absent the parties’ “express waiver”; and 2) vesting exclusive jurisdiction in the courts to determine the waiver issue.25
The Supreme Court attempted to answer the question of who decides whether a particular issue in dispute is arbitrable in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).
[T]he answer to the “who” question…is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., ante, at 57; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 87 L. Ed. 2d 444, 105 S. Ct. 3346 (1985), so the question “who has the primary power to decide arbitrability” turns upon what the parties agreed about that matter…. See AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 89 L. Ed. 2d 648, 106 S. Ct. 1415 (1986) (parties may agree to arbitrate arbitrability).26
In Howsam v. Dean Witter Reynolds, 537 U.S. 79 (2002), the Court elaborated: “The question of whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.’”27
At the same time the Court has found the phrase “question of arbitrability” not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus “procedural’”questions which grow out of the dispute and bear on its final disposition” are presumptively not for the judge, but for an arbitrator, to decide. John Wiley, 376 U.S. 543, at 557 (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide “allegations of waiver, delay, or a like defense to arbitrability.”28
Citing an earlier Supreme Court opinion, the First Circuit in Paine-Webber v. Elahi, 87 F.3d 589, 599 (1st Cir. 1996), noted:
If the parties clearly intend that a particular issue must be resolved by the courts before there is any duty to submit to arbitration, then the courts must respect that intent by deciding the issue. See AT&T, 475 U.S. at 648. On the other hand, if it is ambiguous whether the parties intend a given issue to be an “arbitrability” issue, we must make a sensible presumption about their intent.
The federal circuits have interpreted this directive by examining the issue in question and determining whether it is a substantive jurisdictional prerequisite to arbitrability or a procedural requirement to arbitration. As explained by the 11th Circuit in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d 381, 383 (11th Cir. 1995), the former cases must be decided by a court while the latter are left to the judgment of the arbitrator.
The First Circuit explained the reasoning behind this inquiry in Paine-Webber, which essentially creates a presumption in favor of arbitrability:
[T]he presumption established in AT&T and First Options — that courts, not arbitrators, decide “arbitrability” unless the parties clearly intend otherwise — is an exception to the “liberal federal policy favoring arbitration.” See Moses H. Cone, 460 U.S. at 24. Pursuant to that policy, the Supreme Court has established a broad presumption of arbitrability: “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Id. at 24-25. Accordingly, if the [issue in question] does not control “arbitrability,” the issue…would be one for the arbitrator under the broad arbitration clause, absent a clear indication to the contrary in the parties’ agreement. See Mastrobuono, 115 S. Ct. at 1218 (“[A]mbiguities as to the scope of the arbitration clause itself [must be] resolved in favor of arbitration.”) (quoting Volt, 489 U.S. at 476); AT&T, 475 U.S. at 650 (explaining established rule that where broad arbitration clause is in force, presumption of arbitrability exists unless “forceful evidence” indicates intent to exclude claim from arbitration). In other words, if an “arbitrability” issue arises, it is presumptively for the court to decide; but issues other than “arbitrability” are presumptively arbitrable, that is, for the arbitrator to decide.29
Thus, if the parties have (1) entered into a valid arbitration agreement (satisfying First Options “arbitrability”), and (2) the arbitration agreement covers the subject matter of the underlying dispute between them (satisfying AT&T “arbitrability”), then we will presume that the parties have made a commitment to have an arbitrator decide all the remaining issues necessary to reach a decision on the merits of the dispute. Put differently, the signing of a valid agreement to arbitrate the merits of the subject matter in dispute presumptively pushes the parties across the “arbitrability” threshold; we will then presume that other issues relating to the substance of the dispute or the procedures of arbitration are for the arbitrator. Cf. Moses H. Cone, 460 U.S. at 24-25.30
Simply put, if a party challenges the enforceability of the entire arbitration clause, a court must determine, in the first instance, whether the case should proceed to an arbitration forum. If, however, the challenge is merely to a particular subject of arbitration (such as attorneys’ fees), only the arbitrator can make that determination. Consequently, the federal rule regarding which forum decides issues, such as the award of attorneys’ fees, which does not go to the arbitrability of the underlying dispute and what presumption applies in making that decision, is exactly the opposite of the rule established by the Florida Supreme Court in Turnberry.
Another relevant area of inquiry, discussed by the 11th Circuit in Ierna v. Arthur Murray International, 833 F.2d 1472, 1475 (11th Cir. 1987), is whether attorneys’ fees are similar to other costs of litigation and, therefore, collateral to the underlying cause of action or whether “attorney’s fees are an integral part of the merits of the case and the scope of relief. . . .When the parties contractually provide for attorney’s fees, the award is an integral part of the merits of the case.”31 The same reasoning applies to cases involving a statutory right to attorneys’ fees.32
It appears unmistakable that when the parties have agreed to submit the merits of a dispute to arbitration and when attorneys’ fees are an integral part of the merits, the parties have presumptively agreed to have the issue of attorneys’ fees decided in the arbitral forum.
It can also be argued that the FAA preempts the FAC on the attorneys’ fees issue. In Saturn Distribution Corp. v. Williams, 905 F.2d 719 (4th Cir. 1990), the court explained how preemptions apply when state laws impinge on federal statutory rights. “State laws are subject to preemption not only if they directly contradict federal law, but also if they stand ‘as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”33
Additional conflicts between the FAC and the FAA are reflected by other federal opinions strongly supporting the federal policy in favor of, not only upholding agreements to arbitrate, but also streamlining the arbitration process and invalidating state legislative and judicial attempts to limit the functions of arbitrators.
When the parties agree to arbitrate the merits of the underlying case, the Florida Supreme Court requirement that, absent an express agreement to allow the arbitrators to award attorneys’ fees, the prevailing party must petition a trial court to obtain complete relief, clearly places “an [impermissible] additional layer” in the process.34
Another area worth considering is the effect of a choice of law provision in the parties’ agreement. It has been argued that when the parties’ agreement specifies that a particular state shall apply and said state only allows trial judges to award punitive damages, the state law becomes part of the agreement. The U.S. Supreme Court in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), ruled to the contrary. The Court noted that the FAA “withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.”35
Yet another federal maxim supports the conclusion that the FAA preempts Florida law in this regard. If a state statute discriminates against arbitration agreements, that is, if the law is not one of general application, but applies solely to arbitration agreements, it is preempted by the FAA.36 Clearly F.S. §682.11 is not a statute of general application.
Federal courts have also held various state laws, which vest exclusive jurisdiction in the courts of the state to decide controversies, are preempted by the FAA. A Texas statute that allegedly vested exclusive jurisdiction to hear motor vehicle franchise disputes in a state agency was preempted.37 A California statute that required a certain class of disputes to be resolved within the state was preempted.38 Also preempted was a California statute that prohibited arbitration of noncommercial and consumer claims,39 and a Delaware law that required the exhaustion of state administrative remedies before an arbitration agreement could be invoked.40
Aside from, or perhaps in addition to, the legal arguments against the Florida rule, there is a very real practical argument involving any case brought pursuant to the FAA. Federal law on the awarding of attorneys’ fees requires the (trial) judge to perform a multistep process. First, he or she must calculate the “lodestar” — the hours reasonably expended by counsel multiplied by a reasonable hourly rate.41 The 11th Circuit has noted that an attorney’s trial performance must be taken into account by the judge (clearly a judge will be deciding attorneys’ fees on a case brought in a court forum) when determining whether an attorney is deserving of a particular hourly rate.42 Once the lodestar is determined, the judge must then decide whether to increase or decrease the fee (upon motion of either party), based on several factors.43 Some of those factors include 1) time and labor required; 2) novelty and difficulty of the questions presented; 3) skill required of the attorney; 4) preclusion of other employment; 5) time limitations in connection with the case; 6) amount involved and results obtained.44 It would appear difficult, if not impossible, for a judge who did not have the opportunity to preside over the merits of the underlying dispute and to observe the performance of the attorney seeking fees, to arrive at an informed judgment on many of the required factors.
As noted above, in 2013, the Florida Legislature substantially modified and amended §682.11 as part of an extensive overhaul of the FAC.45 This section now reads:
Remedies; fees and expenses of arbitration proceeding.—
(1) An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim and the evidence produced at the hearing justifies the award under the legal standards otherwise applicable to the claim.
(2) An arbitrator may award reasonable attorney fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding.
(3) As to all remedies other than those authorized by subsections (1) and (2), an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under s. 682.12 or for vacating an award under s. 682.13.
(4) An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award.
(5) If an arbitrator awards punitive damages or other exemplary relief under subsection (1), the arbitrator shall specify in the award the basis in fact justifying and the basis in law authorizing the award and state separately the amount of the punitive damages or other exemplary relief.
It would appear the legislature has intended to remove any doubt about the authority of arbitrators to award attorneys’ fees in appropriate situations. However, the revised Florida Arbitration Code only applies to arbitration agreements made on or after July 1, 2013.46 “The Revised Florida Arbitration Code does not, at this time, affect an action or proceeding commenced or right accrued before July 1, 2013.”47 However, “[b]eginning July 1, 2016, an agreement to arbitrate shall be subject to the Revised Florida Arbitration Code.”48 Accordingly, Florida courts may be expected to follow the Turnberry rule for future arbitrations commenced on or before July 1, 2016, when the agreement to arbitrate (or the contract in which it is contained) was dated prior to July 1, 2013.
In cases involving interstate commerce or maritime transactions, when the parties have agreed to arbitrate a dispute and attorneys’ fees may be awarded pursuant to a contract or statute, the FAA will apply and supersede or preempt conflicting Florida law. Attorneys’ fees in such a case are considered an integral part of the merits of the case and will be awarded, if at all, in the arbitration forum. Even in those cases when attorneys’ fees are collateral to the underlying case, the parties will be presumed to have agreed that collateral issues are also to be decided by the arbitrator. Only the arbitrator has the authority to find that the parties clearly excluded an award of attorneys’ fees, or other collateral issues, from the arbitration agreement.
1 The Florida Legislature enacted the revised Florida Arbitration Code in 2013, which applies to arbitration agreements made on or after July 1, 2013. All reported cases on the issues covered herein are based on the language of the prior statute. The revised code expressly authorizes the arbitrator to award reasonable attorneys’ fees in the appropriate instances.
2 Fla. Stat. §682.11 (2012) (emphasis added).
3 The Turnberry court limited its opinion to the operation of the FAC. The parties, apparently, never raised an issue regarding the possible application of federal law.
4 Turnberry, 651 So. 2d at 1175.
5 The federal law, 9 U.S.C. §§1-14, is more frequently referred to as the Federal Arbitration Act (FAA) and will be so designated herein.
6 Pierce, 603 So. 2d at 628.
7 Turnberry, 651 So. 2d at 1175.
8 Rinella v. Abifaraj, 908 So. 2d 1126 (Fla. 1st DCA 2005); Cunningham v. Standard Guaranty Insurance Co., 630 So. 2d 179 (Fla. 1994).
9 Turnberry, 651 So. 2d at 1175.
10 9 U.S.C. §1 et seq.
11 9 U.S.C. §2.
12 Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995).
13 Barbara Black & Jill Gross, Investor Protection meets the Federal Arbitration Act, 1 Stanford J. Complex Lit. 12 (Fall 2012).
14 O.C.G.A. §9-9-97.
15 Ceco Concrete, 792 F. Supp. 109.
16 Melamed, 405 So. 2d at 792.
17 See Lee v. Smith Barney, Harris Upham & Co., 626 So. 2d 969 (Fla. 2d DCA 1993); Cassedy v. Merrill Lynch, Pierce, Fenner & Smith, 751 So. 2d 143 (Fla. 1st DCA 2006).
18 Lee v. Smith Barney, Harris Upham & Co., 626 So. 2d 969, 970-71 (Fla. 2d DCA 1993).
19 Moeller, 364 F. Supp. 2d at 1342 (citing Lee v. Smith Barney, Harris Upham & Co., 626 So. 2d 969 (Fla. 2d DCA 1993); Fla. Stat. §517.211(6)). Fla. Stat. §517.211(6) states: “In any action brought under this section, including an appeal, the court shall award reasonable attorneys’ fees to the prevailing party unless the court finds that the award of such fees would be unjust.”
20 Paladino, 134 F.3d at 1057 (citing American Express Fin. Advisors, Inc. v. Makarewicz, 122 F.3d 936, 940 (11th Cir. 1997), quoting Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989)).
21 It should be noted that in the vast majority of labor cases, as well as many other nonlabor cases, the parties recognize the existence and validity of an arbitration provision in a contract, voluntarily appear in the arbitration forum and perform the arbitrator’s award without any court involvement.
22 Preston, 552 U.S. at 349 (emphasis added).
23 Moses H. Cone, 460 U.S. at 42.
24 Advanced Body Care, 524 F.3d at 1239-40 (citing AIG Baker Sterling Heights LLC v. Am. Multi-Cinema Inc., 508 F.3d 995, 1001 (11th Cir. 2007)).
25 Turnberry, 651 So. 2d at 1175.
26 First Options, 514 U.S at 943 (further citations omitted).
27 Howsam, 537 U.S. at 83 (citing AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986); First Options, 514 U.S. at 944).
28 Id. at 89-90 (citing Moses H. Cone Memorial Hospital, 460 U.S. at 24-25).
29 Paine-Webber., 87 F.3d at 595.
30 Id. at 599.
31 Ierna, 833 F.2d at 1476.
32 Powell v. Carey International, Inc., 558 F. Supp. 2d 1268, 1270 (S.D. Fla. 2008).
33 Saturn Distribution, 905 F.2d at 722 (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 298 (1988)).
34 Advanced Bodycare, 524 F.d at 1240.
35 Mastrobuono, 514 U.S. at 56 (citing Southland Corp., 465 U.S. 1).
36 Saturn Distribution Corp., 905 F.2d 719; Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005).
37 Saturn Distribution Corp. v. Paramount Saturn Ltd., 326 F.3d 684 (5th Cir. 2003).
38 Bradley v. Harris Research, Inc., 275 F.3d 884 (9th Cir. 2001).
39 Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003).
40 Olde Discount Corp. v. Tupman, 805 F.Supp. 1130, aff’d,1 F.3d 202 (D.C. Del. 1992).
41 Hensley v. Eckerhart, 461 U.S. 424 (1983).
42 Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
43 Kay v. Apfel, 176 F.3d 1322 (11th Cir. 1999).
45 See Fla. Stat. §682.11 (2013) (now denominated the Revised Florida Arbitration Code).
46 Fla. Stat. §682.013(1).
47 Fla. Stat. §682.013(3).
48 Fla. Stat. §682.013(4).
Kenneth Starr received his J.D. from the University of Georgia and is licensed in Florida, Georgia, and Tennessee. He is a Florida certified circuit civil mediator, a Florida qualified arbitrator, member of the Labor and Employment and City, County and Local Government sections of The Florida Bar and a PERC special magistrate.
This column is submitted on behalf of the Labor and Employment Law Section, Robert Stuart Turk, chair, and Robert Eschenfelder, editor.