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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Fuzzy Math? 6 Differing Arbitration Agreements = 0 Arbitration Agreement

By Liz Kramer | December 4 2016

Validity of Arbitration Agreement If you ever wanted an "Exhibit A" for how drafting arbitration agreement(s) could go very, very wrong, the Tenth Circuit has just provided it. In Ragab v. Howard, __ F.3d __, 2016 WL 6832870 (10th Nov. 21, 2016), a majority of the panel concluded that because the parties had six differing arbitration agreements, they...

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ArbitrationNation Marks 5th Year On ABA’s Blawg 100 List

By Liz Kramer | November 29 2016

Year In Review Editors of the ABA Journal  have selected ArbitrationNation as one of the top 100 best "blawgs" for a legal audience.  This marks the fifth consecutive year that this blog has made the cut.  (See the full list here.)  It remains the only arbitration blog on the list. Thank you to everyone who nominated...

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8th Circuit Expands Arbitral Immunity Doctrine

By Liz Kramer | November 23 2016

Appealing Arbitration Decisions, Arbitration Rules/Procedures A per curiam opinion from the 8th Circuit last week highlights that even if an arbitration goes off the rails, the only remedy is vacating (or confirming) the award.  The parties cannot recover from the administrator of the arbitration. In Owens v. American Arbitration Association, Inc., 2016 WL 6818858 (8th Cir....

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After Five Years In Court, West Virginia Finds Plaintiff Did Not Waive Right To Arbitrate

By Liz Kramer | November 20 2016

Waiver of Right to Arbitrate The highest state court in West Virginia just found that a credit card company did not waive its right to arbitrate, despite initially choosing a court forum and waiting almost five years to raise its right to arbitrate.  That is a somewhat surprising decision from a court that has been repeatedly willing to buck...

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Arbitrator’s False Credentials Are Sufficient To Vacate Award

By Liz Kramer | November 14 2016

Appealing Arbitration Decisions In most circumstances, the Federal Arbitration Act requires that the losing party move to vacate an arbitration award within three months.  However, the Ninth Circuit recently ruled that the three-month timeline can be tolled, especially for something as significant as the chair lying about being a licensed...

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Supreme Court Sunrise

SCOTUS Accepts Review of Kentucky Nursing Home Arbitration Case

By Liz Kramer | October 30 2016

Validity of Arbitration Agreement On October 28, the Supreme Court granted a cert petition in a case in which the Kentucky Supreme Court refused to enforce arbitration agreements in nursing home agreements.  (Kentucky recently topped my list of states hostile to arbitration precisely because of the language in the decision that will be...

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Louisiana Rejects Arbitration Clause In Contract Of Adhesion

By Liz Kramer | October 23 2016

Validity of Arbitration Agreement The Supreme Court of Louisiana refuses to send customers who were injured while playing at Sky Zone to arbitration, finding that the arbitration clause "is adhesionary and therefore unenforceable".  Duhon v. Activelaf, LLC, __ So. 3d __, 2016 WL 6123820 (La. Oct. 19 2016); Alicea v. Activelaf, LLC, __ So. 3d __, 2016...

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Administration Joins Courts In Prohibiting Arbitration In Nursing Home Admissions

By Liz Kramer | October 16 2016

Litigation vs. Arbitration, Validity of Arbitration Agreement Within the U.S. Government, the CFPB has gotten most of the attention for trying to regulate consumer arbitration.  But this month, the Centers for Medicare & Medicaid Services (CMS) are bumping the CFPB out of the arbitration regulation spotlight.  In particular, the CMS issued a rule that will prohibit the use...

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Preemption Parade: FAA Rolls Over Three State Rules

By Liz Kramer | October 5 2016

Validity of Arbitration Agreement Lest anyone think that the preemption doctrine in arbitration has gone dormant, today's cases should set the record straight.  Courts have recently found the FAA preempted state rules in Pennsylvania, South Carolina, and Alabama. The Pennsylvania Supreme Court found that one of its rules of civil procedure was...

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Futility Trumps Waiver of Arbitration Rights in Third Circuit

By Liz Kramer | September 26 2016

Class Arbitration, Waiver of Right to Arbitrate Echoing a holding already issued by four other circuits, the Third Circuit recently found that a defendant does not waive its right to arbitration by continuing to litigate in court, if the reason it failed to move to compel arbitration is that the motion would have been futile.  Chassen v. Fidelity Nat'l Fin., Inc.,...

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