In Shanks v. Swift Transportation, the Federal District Court  for the Southern District of Texas held that where plaintiff-heirs in a wrongful death action sought survival and death benefits under a benefits plan requiring the arbitration of decedent's claims, Texas law required that those claims be arbitrated under the employment agreement's requirements despite the fact that none of plaintiffs was a signatory to the arbitration agreement.

Among the principles and holdings in this case were:

• the Federal Arbitration Act did not apply by its own terms
• although Texas law does not presume arbitration agreements are valid, if they are valid, doubts regarding their scope are resolved in favor of arbitration. 
•  under Texas law non-signatories may be bound to arbitration agreements under the doctrines of:
  • incorporation by reference;
  • assumption;
  • agency;
  • alter ego;
  • equitable estoppel; and
  • third-party beneficiary
• the heirs' survival claim and the claim for death benefits brought pursuant to the
  Plan was required to be arbitrated under the doctrine of direct benefits estoppel.
• Because Plaintiffs’ wrongful death claims were “factually intertwined” with the survival and death benefits claims, they must be arbitrated alongside the other claims.

I do not know whether Texas law, like California law, requires employers to foot the bill for the arbitration.  If it does not, I wonder whether this decision is the death-knell to the Plaintiffs' wrongful death claims, claims that can usually be pursued only if the attorney advances the costs of the wrongful death action to the Plaintiffs.  (Seethe ABA Journal post Are Lawyers Becoming Luxury Goods?) */

I also wonder whether the Fifth Circuit would conclude that requiring the arbitration of a wrongful death claim contravenes public policy.  I'd certainly make that argument before a federal trial court sitting in California, though I doubt that this ruling would be possible under California law.  

Hat tip to Lawyers USA for bringing us this breaking legal news.

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*/   As the ABA Journal item notes:

Lawyers increasingly are becoming like luxury goods to many would-be clients, an expensive article that they can't afford or don't want to make a priority.

And that is bad news for the profession as well as for the public, says a recent article in the National (PDF), a magazine published by the Canadian Bar Association