A Conversation with Jennifer McLeod of Ellis Lawhorne On Estate Planning

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The Sound of Silence: SCOTUS FAA Arbitration Rulings Upend the Way SC Courts Construe Contracts

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Hello FAA, My Old Friend South Carolina courts have frequently been called upon to consider the ways in which the Federal Arbitration Act (FAA) applies to those contracts containing clauses purporting to require arbitration. The recent S.C Court of Appeals decision Grant v. Kuhn Chevrolet is the latest example. The opinion and its result rests not on the application of South Carolina statutory or case law, but instead a line of United States Supreme Court (SCOTUS) cases applying the FAA to disputes over agreements to arbitrate. For some background and discussion on some of these cases, click  here , here , or here . While it may not be entirely remarkable to apply SCOTUS opinions in state court cases, the manner of contract interpretation mandated by SCOTUS for arbitration agreements is completely different than the way South Carolina courts interpret “everyday” contracts. More specifically, these SCOTUS opinions explicitly prohibit the use of several contract interpretation t
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What Authority the Principal Chose: Arredondo, POAs, and Arbitrability

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It was only a matter of time before arbitrability (the enforceability of an agreement to arbitrate) put a South Carolina courts in the position to construe the language in a power of attorney ("POA"). And this opinion did.  I try to view these decisions through the lens of how an attorney practicing in South Carolina might learn from them. And this decision, like some others involving the FAA and arbitrability, (for example, Grant v. Kuhn Chevrolet  or Herron v. Century BMW  , had the litigator and the drafter in me scratching my head.  Or at least I was confused until I learned about what had happened legislatively in the time since the POAs at issue in Arredondo were scrutinized by three (3) South Carolina courts. This decision, involving a POA executed before January 1, 2017, is likely an anomaly or a one-off, as going forward the S.C. Uniform Power of Attorney Act (SCUPOA) provides a guide for the creation of POAs that may avoid the necessity for so much judicial scruti
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The Only Thing Settled About Arbitrability is its Continued Litigatibility

Introduction Although both the United States Supreme Court and the South Carolina Supreme Court often attempt to define arbitrability -- the question of whether a contractual provision purporting to send disputes to arbitration is enforceable --  the case-by-case analysis applied in considering it means that like the Lernaean Hydra , a determination on one set of facts will only spawn numerous other challenges.   The South Carolina Court of Appeals' recent decision in Smith v. D.R. Horton, Inc., et al. is the latest in this line of arbitrability cases, affirming a circuit court determination that an arbitration clause in a purchase agreement was unenforceable because it was unconscionable.  For this Blog's previous posts chronicling arbitrability decisions and related topics, see  Recent Cases on the Reach of the S.C. and Federal Arbitration Acts , Asserting the Right to Compel Arbitration , Arbitrating Arbitrability: Part One of the Effect of Recent SCOTUS Decisions
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