Adhesive Arbitration

In MAPP, L.L.C. v. Floor and Decor Outlets of America, Inc., the Fifth Circuit affirmed denial of a national retailer’s motion to compel arbitration against its former contractor. The panel majority noted:

1. The clause gave the retailer sole discretion to elect arbitration: “Any disputed Claims that cannot be decided by confidential negotiation or mediation may, in the sole discretion of Owner, be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect.”
2. Fee awards were one-sided, given that the retailer had sole discretion to enforce the clause: “… each party shall be entitled to any attorneys’ fees incurred by such party for any motions practice required to enforce this provision by litigation, including any motions to compel arbitration, which shall be awarded by the arbitrator in the form of an interim award upon application for fees by the party enforcing this provision.
3. The contract was negotiated by a local contractor seeking a national retail chain’s business.

A concurrence would have reached the same conclusion, but because of a failure to follow the specified contractual procedure. No. 25-30536 (Aug. 6, 2026).