Last week the U.S. District Court for the District of Nevada noted the existence of “a dispute among the circuits regarding the interpretation of certain common arbitration provisions.” Operation: Heroes, Ltd. v. P & G Prods., Inc., Case No. 2:12-cv-00214-MMD-GWF (D. Nev. Oct. 11, 2012). Earlier this year a Hawaiian court summarized the conflict referenced in the Operation: Heroes, Ltd. opinion as follows:
In cases construing agreements requiring arbitration for disputes "arising under" or "arising out of" the agreement or arising "hereunder," there is a split of authority among federal courts as to how such language should be interpreted. Some courts, primarily in the Ninth Circuit, construe that type of arbitration language as being narrow and restrict arbitration only to disputes relating to interpretation and performance of the contract. See Mediterranean Enters., Inc., 708 F.2d 1458; In re Kinoshita & Co., 287 F.2d 951 (2d Cir. 1961); Cape Flattery Ltd., 607 F. Supp. 2d at 1185-88. On the other side, some courts construe such language broadly. See Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 380-82 (1st Cir. 2011) (rejecting Kinoshita); Battaglia v. McKendry, 233 F.3d 720, 725-27 (3d Cir. 2000); Gregory v. Electro-Mechanical Corp., 83 F.3d 382, 385 (11th Cir. 1996).
Cnty. of Haw. v. Unidev, LLC, Nos. CAAP-10-0000188 & CAAP-11-0000019 (Haw. Ct. App. Aug. 31, 2012).