In November, TI Pneumotive, Inc., filed a petition for certiorari in the case TI Pneumotive, Inc. a/k/a Thomas Industries v. Ecological Tanks, 2011-1159 (La. 9/2/11), 68 So.3d 519, 2011.
The questions presented are:
- Whether the Louisiana Supreme Court and lower courts have erred in interpreting Howsam v. Dean Witter Reynolds, Inc ., 536 U.S. 985 (U.S. 2002) to find that it is the province of the arbitrator to decide whether a party has waived its right to arbitration by participating in litigation; and
- Whether it should be presumed that a party has waived arbitration when it elects to proceed with litigation in lieu of arbitration or if the party raising the issue of waiver has to make a showing of prejudice.