CLAIM AND DISPUTE RESOLUTION PLAN AND RULES
THE
NATIONAL FRATERNITY OF KAPPA DELTA RHO
CLAIM
AND DISPUTE RESOLUTION PLAN
1. Purpose and
Construction
The Plan is designed to provide for
the quick, fair, accessible, and inexpensive resolution of legal disputes
between the Fraternity, and between any parent, affiliate, or successor of the Fraternity,
or any of their officers, directors, new members, alumni, or members, and the Fraternity’s
present and former members, related to or arising out of a membership
relationship with the Fraternity or participation in a Fraternity activity,
expressly including, but not limited to, any legal disputes in which any
present or former National Fraternity of Kappa Delta Rho member asserts a claim
or dispute against the Fraternity, any parent, affiliate, or successor of the Fraternity,
or any of their officers, directors, or members, and the Fraternity’s present
and former members. The Plan is intended to create an exclusive procedural
mechanism for the final resolution of all disputes falling within its terms.
It is not intended either to reduce or enlarge substantive rights available
under existing law. The Plan should be interpreted in accordance with these
purposes.
2. Definitions
A. “AA”
means any federal or state-recognized Arbitration Association or a similar,
local group of arbitrators selected by Sponsor to hear the member’s claim or
dispute in the area of the Chapter’s location.
B. “Sponsor”
means the National Fraternity of Kappa Delta Rho.
C. The
“Act” means the Federal Arbitration Act.
D. “Fraternity”
means the National Fraternity of Kappa Delta Rho, house corporations, and every
student chapter or alumni organization of the National Fraternity of Kappa
Delta Rho and all of their officers, directors, members, and agents. “Fraternity”
also includes every plan of benefits or foundation, whether or not tax-exempt,
established or maintained by any such entity, and the fiduciaries, agents and members
of all such entities. “Fraternity” also includes the successors and assigns or
all such persons and entities.
E. “Claim”
means any legal or equitable claim, demand or controversy for any personal
injury, equitable relief or property damage arising out of any tort, statute
(local, state or federal) or breach of contract involving the Fraternity. This
includes but is not limited to any type of allegation of negligence,
intentional acts, defamation, discrimination, contribution or indemnity.
F. “Dispute”
means a claim, demand or controversy to which this Plan applies, between
persons bound by the Plan or by an agreement to resolve disputes under the
Plan, or between a person bound by the Plan and a person or entity otherwise
entitled to its benefits.
G. “Member”
means any new member, pledge, initiate, existing member, alumni, or former member
of the National Fraternity of Kappa Delta Rho.
H. “Party”
means a person bound by this Plan.
I. “Plan” means this National Fraternity of Kappa Delta Rho Claim and Dispute
Resolution Plan, as amended from time to time.
J. “Referee”
means a person selected under this Plan to decide or mediate a Claim or Dispute,
such as an arbitrator or mediator. “Decision by Referee” means resolution of a
Claim or Dispute by arbitration or any other method selected by the Parties
under this Plan.
K. “Rules”
means the National Fraternity of Kappa Delta Rho Claim and Dispute Resolution
Rules, as amended from time to time.
3. Application
and Coverage
A. Until
revoked by Sponsor pursuant to this Plan, this Plan applies to and binds the Fraternity
and each Member on or after the effective date of this Plan, and the heirs,
beneficiaries and assigns of any such person. All such persons shall be deemed
Parties to this Plan.
B. Except
as provided for herein, this Plan applies to any legal or equitable Claim, Dispute,
demand or controversy, in tort, in contract, under statute (local, state or
federal), or alleging violation of any legal obligation, between persons bound
by the Plan, or between a person bound by the Plan and any person or entity
entitled to its benefits, which relates to, arises from, concerns or involves
in any way any Claim or Dispute as defined, herein, arising out of or involving
the Fraternity or any Fraternity activity. This includes any direct or
indirect claims for contribution or indemnity.
C. Notwithstanding
anything to the contrary in this Plan, the Plan does not apply to claims for
workers compensation benefits or unemployment compensation benefits.
4. Resolution of
Disputes
All disputes not
otherwise settled by the Parties shall be finally and conclusively resolved
under this Plan and the Rules.
5. Amendment
A. This
Plan may be amended by Sponsor at any time with thirty (30) days notice. However,
no amendment shall apply to a Dispute of which Sponsor had actual notice on the
date of amendment.
B. Sponsor
may amend the Rules at any time with thirty (30) days notice. However, no
amendment will be effective:
1. until
reasonable notice and acceptance of the amendments are made available on the National
Fraternity of Kappa Delta Rho website to all members, or
2. as
to a Claim or Dispute of which Sponsor had actual notice (by notice of intent
to arbitrate or otherwise) on the date of amendment.
6. Termination
This Plan may be
terminated by Sponsor at any time. However, termination shall not be
effective:
A. until
10 days after reasonable notice and acceptance of termination is given to Members;
or
B. as
to Claims or Disputes which arose prior to the date of termination.
7. Applicable Law
A. The
Act shall apply to this Plan, the Rules, and any proceedings under the Plan or
the Rules, including any actions to compel, enforce, vacate or confirm
proceedings, awards, orders of a Referee, or settlements under the Plan or the
Rules.
B. Other
than as expressly provided herein, or in the Rules, the substantive legal
rights, remedies and defenses of all Parties are preserved. In the case of
arbitration, the arbitrator shall have the authority to determine and implement
the applicable law and to order any and all relief, legal or equitable,
including punitive damages, which a Party could obtain from a court of
competent jurisdiction on the basis of the claims made in the Dispute.
C. Other
than as expressly provided herein, or in the Rules, the Plan shall not be
construed to grant additional substantive legal or contractual rights, remedies
or defenses which would not be applied by a court of competent jurisdiction in
the absence of the Plan.
8. Administrative
Proceeding
A. This
Plan shall apply to a Dispute pending before any local, state or federal
administrative body unless prohibited by law.
B. Participation
in any administrative proceeding by the Fraternity shall not affect the applicability
of the Plan to any such dispute upon termination of the administrative
proceedings. A finding, recommendation or decision by an administrative body
on the merits of a dispute subject to this Plan shall have the same legal
weight or effect under the Plan as it would in a court of competent
jurisdiction.
9. Exclusive
Remedy
Proceedings under the
Plan shall be the exclusive, final and binding method by which Disputes are
resolved. Consequently, the institution of a proceeding under this Plan shall
be a condition precedent to the initiation of any legal action (including
action before an administrative tribunal with adjudicatory powers) against the Fraternity
arising out of the membership or participation in Fraternity activities of a member
by the Fraternity and any such legal action shall be limited to those under the
Act.
10. Effective Date
The effective date of this Plan is
March 28, 2016.
11. Severability
The terms of this Plan
and the Rules are severable. The invalidity or unenforceability of any
provision therein shall not affect the application of any other provision.
Where possible, consistent with the purposes of the Plan, any otherwise invalid
provision of the Plan or the Rules may be reformed and, as reformed, enforced.
12. Assent
Accepting membership, becoming
a new member or continued membership after the Effective Date of this Plan and
any amendments constitutes consent by both the Member and the Fraternity to be
bound by this Plan, both during the membership and after termination of membership.
THE NATIONAL FRATERNITY
OF KAPPA DELTA RHO
CLAIM AND DISPUTE
RESOLUTION RULES
1. Definitions
All definitions included
in the National Fraternity of Kappa Delta Rho Claim and Dispute Resolution Plan
apply to these Rules.
2. Application
These Rules apply in the
form existing at the time proceedings are initiated under them.
3. Initiation of
the Process
A. A
Party may initiate proceedings under these Rules at any time, subject to any
defenses applicable to the timeliness of the claim, including limitations and
laches.
B. Proceedings
may be initiated by a Member against the Fraternity and/or its Members by
serving the Executive Director of the National Fraternity of Kappa Delta Rho.
In such a case, the Fraternity shall, within ten (10) days of receiving notice,
select the AA.
C. Parties
on whom notice is served shall file an answering statement within 21 days of
receiving notice of intent to arbitrate or a specification of claims, which
shall include any counter-claims.
4. Administrative
Conference
As soon as possible after
receipt of the answering statement, if any, the AA shall convene an
administrative conference. The conference may be held in person or by
telephone. At the conference, the AA will determine whether the Parties are in
agreement on a method to resolve the dispute. If the Parties agree on a
procedure, including agreement on an Arbitrator, the AA
will implement this agreement to the extent consistent with the AA’s rules
upon payment of any applicable fee. If the Parties cannot agree, or if the
Parties have previously attempted and failed to resolve the Claim or Dispute,
the Claim or Dispute shall be arbitrated under these Rules.
5. Appointment of
Arbitrator
Immediately after payment
of the arbitration fee, the AA shall send
simultaneously to each Party an identical list of names of persons chosen from
a panel of qualified arbitrators which the AA shall
select and maintain. Each Party to the Claim or Dispute shall have fourteen
(14) days from the transmittal date to strike any names objected to, number the
remaining names in order of preference, and return the list to the AA. If a
Party does not return the list within the time specified, all persons therein
shall be deemed acceptable. From among the persons who have been approved on
both lists, and in accordance with the order of mutual preference, the AA shall
invite the acceptance of the single arbitrator to serve. If there is no
approval of an arbitrator through this method, the AA shall submit three (3)
qualified arbitrators to each Party, and each Party shall have one (1) strike,
and the remaining name shall serve as arbitrator.
In the sole discretion of
the Fraternity, two (2) additional arbitrators may be selected to hear the full
trial on the merits of this matter.
6. Qualifications
of the Arbitrator
No person shall serve as
an arbitrator in any matter in which that person has any financial or personal
interest in the result of the proceeding. Prior to accepting appointment, the
prospective arbitrator shall disclose any circumstance likely to prevent a
prompt hearing or create a presumption of bias. Upon receipt of such
information from the arbitrator or any other source, the AA will either replace that person or communicate the
information to the Parties for comment. Thereafter, the AA may disqualify that
person and its decision shall be conclusive.
7. Vacancies
If a vacancy occurs for
any reason or if an appointed arbitrator is unable to serve promptly, the
appointment procedure in Section 5 shall apply to the selection of a substitute
arbitrator.
8. Date, Time and
Place of Hearings
A. The
arbitrator shall set the date, time and place of the hearing in the county
where the Fraternity has a local chapter to which the member belongs or where
the involved Chapter was located at the time of the event in question.
B. Notice
of any hearing shall be given at least ten (10) days in advance, unless the
arbitrator determines or the Parties agree that a shorter time is necessary.
C. If
one Party is a Member, the arbitrator shall make reasonable efforts, without
unduly incurring expense, to accommodate the Member in the selection of a
hearing location.
9. Mode of
Hearings and Conferences
In the discretion of the
arbitrator or by agreement of the Parties, conferences and hearings may be
conducted by telephone or by written submission as well as in person.
10. Pre-Hearing
Discovery
A. On
any schedule determined by the arbitrator, each Party shall submit in advance,
the names and addresses of the witnesses it intends to produce and any
documents it intends to present.
B. The
arbitrator shall have discretion to determine the form, amount and frequency of
discovery by the Parties. However, the arbitrator cannot allow more than 20
hours per side of depositions, or more than 20 interrogatories, requests for
production, and requests for admission per side, unless good cause is shown.
11. Representation
Any Party may be
represented by counsel or by any other authorized representative.
12. Attendance at
Hearings
The arbitrator shall
maintain the privacy of the hearings to the extent permitted by law. Any
person having a direct interest in the matter is entitled to attend the
hearings.
The arbitrator shall
otherwise have the power to require the exclusion of any witness, other than a
Party or other essential person, during the testimony of any other witness.
The arbitrator shall determine whether any other person may attend the
hearing. Upon the request of any Party, the arbitrator shall exclude any
witness during the testimony of any other witness.
13. Postponement
A. The
arbitrator, for good cause shown by a Party, or on agreement of the Parties,
may postpone any hearing or conference.
B. The
pendency of court proceedings related to the same matter is not good cause for
postponement.
14. Oaths
Before proceeding with
the first hearing, each arbitrator may take an oath of office and, if required
by law, shall do so. The arbitrator may require witnesses to testify under
oath administered by any duly qualified person and if required by law or
requested by any Party, shall do so.
15. Stenographic
Record
There shall be no
stenographic record, tape recorded, or videotape record of the proceedings
unless either requested by one of the Parties or the arbitrator rules
otherwise. The Party requesting the record shall bear the entire cost of
producing the same. Copies of the record shall be furnished to all other
Parties on request and payment of the cost of reproduction.
16. Procedure
The hearings shall be
conducted by the arbitrator(s) in whatever order and manner will most
expeditiously permit full presentation of the evidence and arguments of the
Parties.
17. Arbitration in
the Absence of a Party
The arbitrator(s) may proceed
in the absence of Parties or representatives who, after due notice, fail to be
present or fail to obtain a postponement. An award shall not be made solely on
the default of a Party. The arbitrator(s) shall require any Party who is
present to submit such evidence as the arbitrator(s) may require for the making
of an award.
18. Evidence
A. The
arbitrator(s) shall be the sole judge of the relevance, materiality and
admissibility of evidence offered. Conformity to legal rules shall not be
necessary.
B. The
arbitrator(s) may subpoena witnesses or documents at the request of a Party or
on the arbitrator’s own initiative.
C. The
arbitrator(s) may consider the evidence of witnesses by affidavit or
declaration, but shall give it only such weight as the arbitrator(s) deems it
entitled to after consideration of any objection made to its admission.
19. Post-Hearing
Submissions
All documentary evidence
to be considered by the arbitrator(s) shall be filed at the hearing, unless the
arbitrator(s) finds good cause to permit a post-hearing submission. All
Parties shall be afforded an opportunity to examine and comment on any
post-hearing evidence. The arbitrator(s) shall permit the filing of
post-hearing briefs at the request of a Party and shall determine the procedure
and timing of such filings.
20. Closing and
Reopening of Hearing
A. When
the arbitrator(s) is satisfied that the record is complete, including the
submission of any post-hearing briefs or documents permitted by the arbitrator(s),
the arbitrator(s) shall declare the hearing closed.
B. The
hearing may be reopened on the arbitrator’s initiative or upon application of a
Party, at any time before the award is made.
21. Waiver of
Procedures
Any Party who fails to
object in writing after knowledge that any provision or requirements of these
procedures has not been complied with, shall be deemed to have waived the right
to object.
22. Service of
Notices and Papers
Any papers, notices, or
process necessary or proper for the initiation of continuation of any
proceeding under these Rules (including the award of the arbitrator; for any
court action in connection therewith; or for the entry of judgment on an award
made under these procedures) may be served on a Party by mail addressed to the
Party or his representative at the last known address or by personal service.
Service may be made at any place, provided that the Party served has had a
reasonable opportunity to be heard with regard to service. The AA, the
Parties, and the arbitrator may also use facsimile transmission, telex,
telegram, or other written forms of electronic communication to give any
notices required by these procedures.
23. Communications
with the AA and the Fraternity
A. Any
Party may notice, serve or communicate with the Fraternity by contacting:
Joseph S. Rosenberg,
Executive Director (Program Administrator)
National Fraternity of
Kappa Delta Rho
South Main Street | Greensburg, PA 15601
724-838-7100
Fax: 724-838-7101
24. Communications
with the Arbitrator
There shall be no
communication between the Parties and the arbitrator other than at any oral
hearings or conferences. Any other oral or written communications from the
Parties to the arbitrator shall be directed to the AA (and copied to the
Parties) for transmission to the arbitrator, unless the Parties and the
arbitrator agree otherwise.
25. Time of Award
The award shall be
promptly made by the arbitrator(s) and, unless otherwise agreed by the Parties
or specified by applicable law, no later than thirty (30) days from the date of
the closing of the hearing or the closing of a reopened hearing, whichever is
later.
26. Form of Award
The award shall be in
writing and shall be signed by the arbitrator(s). If any Party requests in its
Notice or Answering Statement, the arbitrator shall write a summary of reasons
for the decision. The award shall be executed in any manner required by
applicable law.
27. Modification of
Award
On order of a court of
competent jurisdiction, or on agreement of the Parties, the arbitrator(s) shall
modify any award. The arbitrator(s) may modify an award on the motion of a
Party if the arbitrator(s) finds that the award as rendered is ambiguous or
defective in form, or if the award requires an illegal or impossible act. These
are the only circumstances under which an arbitrator(s) shall have jurisdiction
to withdraw or modify an award.
28. Settlement
If the Parties settle
their dispute during the course of the arbitration, the arbitrator may set out
the terms of the settlement in a consent award.
29. Scope of
Arbitrator’s Authority
The arbitrator’s
authority shall be limited to the resolution of legal disputes between the
Parties in the same manner as a court of general jurisdiction in the venue.
This includes but is not limited to determination of jurisdiction and
dispositive motions. As such, the arbitrator(s) shall be bound by and shall
apply applicable law including that related to the allocation of the burden of
proof as well as substantive law. The arbitrator(s) shall not have the
authority either to reduce or enlarge substantive rights available under
existing law. The arbitrator(s) may also grant emergency or temporary relief
which is or would be authorized by applicable law.
30. Judicial
Proceedings and Exclusion of Liability
A. No
arbitrator is a necessary Party in any judicial proceedings relating to
proceedings under these Rules.
B. No
arbitrator shall be liable to any Party for any act or omission in connection
with any proceedings within the scope of these Rules.
C. Any
court with jurisdiction over the Parties may compel a Party to proceed under
these Rules at any place and may enforce any award made.
D. Parties
to these Rules shall be deemed to have consented that judgment upon the award of
the arbitrator may be entered and enforced in any federal or state court having
jurisdiction of the Parties.
E. Initiation
of, participation in, or removal of a legal proceeding shall not constitute
waiver of the right to proceed under these Rules.
F. Any
court with jurisdiction over the Parties may issue any injunctive orders
(including temporary restraining orders and preliminary injunctions) if the
necessary legal and equitable requirements under applicable law are met pending
the institution of proceedings under these Rules.
31. Fees and
Expenses
A. The
expenses of witnesses shall be borne by the Party producing such witnesses,
except as otherwise provided by law or in the award of the arbitrator.
B. All
attorney’s fees shall be borne by the Party incurring them except as otherwise
provided by law, by the Plan, or in the award of the arbitrator(s).
C. Member
Parties: Except as provided in this Rule, Member parties shall not be
responsible for payment of fees and expenses of proceedings under these Rules
including required travel of an arbitrator, expenses of an arbitrator and the
cost of any proof produced at the discretion of an arbitrator. If proceedings
are initiated by a Member, the Member shall be responsible for the following
fees:
i. $100
if the Parties go to mediation or other non-binding means to resolve the Claim
or Dispute requiring one neutral; and
ii. $1,000
for arbitration initiated by a Member.
All other fees for
mediation or arbitration shall be paid by the National Fraternity, but can be
awarded against the Member as part of an award of costs.
D. If
the demand for mediation or arbitration is initiated by the Fraternity, all
fees will be paid by the Fraternity.
32. Interpretation
and Application of These Rules
The arbitrator shall
interpret and apply these Rules insofar as they relate to the arbitrator’s
powers and duties.
33. Applicable Law
A. These
proceedings and any judicial review of awards under these Rules shall be
governed by the The Act.
B. Except
where otherwise expressly provided in these Rules, the substantive law applied
shall be state or federal substantive law which would be applied by the Federal
Circuit Court of Appeals for the state where the event occurred.
