Arbitration is meant to be an alternate to litigation. Yet arbitration is itself the subject of much litigation over who must arbitrate, what must be arbitrated, whether and how the arbitration should proceed, and the deference courts must show to arbitration awards. This blog is intended to be a resource for litigators, in-house counsel, arbitrators and anyone else who wants to stay on top of the many thorny issues that arise under the Federal Arbitration Act. Our Bloggers →

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First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months

By Liz Kramer | December 11 2014

Uncategorized, Waiver of Right to Arbitrate We haven't had a good waiver case in a while.  The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either).  It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court in the first place, but by...

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Three-Peat: ArbitrationNation Makes ABA’s Blawg 100 Again in 2014

By Liz Kramer | November 25 2014

Year In Review Do you remember Balki's Dance of Joy from the TV show Perfect Strangers?  That is what I am doing today.  Editors of the ABA Journal announced yesterday they have selected ArbitrationNation as one of the top 100 best blogs for a legal audience for the third straight year (out of 4,000+ legal blogs).  I am very...

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New Survey Dispels Common Myths About Arbitration

By Liz Kramer | November 20 2014

Litigation vs. Arbitration Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award?  That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law. The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine...

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Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid

By Liz Kramer | November 13 2014

Class Arbitration, Validity of Arbitration Agreement A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble's website was not enforceable.  This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let...

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Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair

By Liz Kramer | November 5 2014

Arbitration Rules/Procedures, Validity of Arbitration Agreement The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL 5503393 (Haw. Oct. 31, 2014).  The parties can either jointly agree to a forum, or the court...

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Don’t Sign Your Spouse’s Arbitration Agreement, And Other Lessons From Non-Signatories

By Liz Kramer | October 31 2014

Validity of Arbitration Agreement In three cases in recent months, courts have found that plaintiffs who did not sign an arbitration agreement (non-signatories) are not obligated to arbitrate.  In all three cases, a key issue was that the plaintiff's claims in court did not rely on the contract containing the arbitration clause. In the most...

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“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration

By Liz Kramer | October 22 2014

Validity of Arbitration Agreement Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts “harmonize” language from different parts of an agreement or from multiple agreements. The decision from the Eighth...

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Second Federal Circuit Court Refuses To Enforce Arbitration By South Dakota Tribe

By Liz Kramer | October 15 2014

Validity of Arbitration Agreement Using a different analysis, but reaching the same result as a recent decision from the Seventh Circuit, the Eleventh Circuit agreed that a defendant could not compel arbitration of consumer claims before the Cheyenne River Sioux Tribal Nation in South Dakota.  Inetianbor v. CashCall, __ F.3d__, 2014 WL 4922225...

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Minnesota Supreme Court Finds AAA Rules Give Arbitrator Power To Issue Sanctions Over $600 Million

By Liz Kramer | October 8 2014

Appealing Arbitration Decisions The Minnesota Supreme Court today unanimously confirmed an arbitration award of over $600 million in punitive sanctions. Seagate Technology, LLC v. Western Digital Corp., (Minn. Oct. 8, 2014).  Although the appellant argued the arbitrator exceeded his authority by severely sanctioning appellant for fabricating...

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Five Tips for State Courts Considering Whether to Vacate Arbitration Awards (ahem, South Dakota, Ohio)

By Liz Kramer | October 2 2014

Appealing Arbitration Decisions In an example of “What Not to Vacate,” the South Dakota Supreme Court just vacated an arbitration award because the arbitrator dared to apply a South Dakota statute allowing attorneys’ fees to the claimant. A week earlier, the Ohio Supreme Court also vacated an arbitration award for granting a remedy that the...

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