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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SCOTUS Reverses KY Nursing Home Arbitration Decision; Refuses To Prioritize Right To Jury Trial

By Liz Kramer | May 15 2017

Validity of Arbitration Agreement, Year In Review Just as I predicted, SCOTUS reversed the Kentucky Supreme Court's decision in Kindred this morning.  The interesting piece, though, is that the seven member majority went out of its way to cut off some of the "on trend" methods that state courts have been using to avoid arbitration...

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Maryland’s Highest Court Finds Small Claims Court Action Waived Right To Arbitrate

By Liz Kramer | May 8 2017

Class Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate It is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause?  The court's answer was yes,...

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Fifth Circuit Dances On Head of Arbitration Pin

By Liz Kramer | April 29 2017

Validity of Arbitration Agreement Demonstrating just how difficult it can be to separate questions about the "formation" of an arbitration agreement from the "validity" of that agreement, the Fifth Circuit found this month that when an argument was applied to two of the parties' three agreements, it related to their formation, but when the same...

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8th Circuit Finds ADEA Does Not Preclude Arbitration

By Liz Kramer | April 28 2017

Class Arbitration, Validity of Arbitration Agreement One of the few "get out of arbitration free" cards that SCOTUS offers litigants is this: find another federal statute that clearly entitles plaintiff(s) to a court trial. In a recent 8th Circuit case, that court carefully considered, and then rejected, the argument that the Age Discrimination in Employment Act (ADEA)...

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California Invalidates Waiver of Public Injunctive Relief In Consumer Arbitration Clause

By Liz Kramer | April 8 2017

Class Arbitration, Validity of Arbitration Agreement Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement.  (Btw, here's a nice SCOTUSblog piece on Gorsuch's arbitration decisions.)  In...

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Third Circuit Goes On Formation Tour — Issues Arbitration Decisions Favoring Prisoners and Pistachio Buyers

By Liz Kramer | March 30 2017

Validity of Arbitration Agreement In the past week, the Third Circuit has issued two important decisions on the formation of arbitration agreements.  (Sing it Beyoncé! "Okay ladies, now let's get in formation.")  In one, a class action was allowed to proceed in court because the defendant did not obtain explicit enough agreement to the...

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New Jersey Says Non-Payment Of Arbitration Fees is Breach of Agreement

By Liz Kramer | March 17 2017

Litigation vs. Arbitration, Waiver of Right to Arbitrate The New Jersey Supreme Court refused to allow a respondent to benefit from its refusal to pay arbitration fees in Roach v. BM Motoring, LLC, 2017 WL 931430 (NJ March 9, 2017). First, Ms. Jackson filed a demand for arbitration against a New Jersey car dealership with the AAA.  The parties' arbitration agreement...

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Samsung Shut Out Of Arbitration In Recent Consumer Class Actions

By Liz Kramer | March 11 2017

Class Arbitration, Validity of Arbitration Agreement Two federal circuit courts of appeals have recently found that documents Samsung included in boxes with consumer products did not effectively create an arbitration agreement.   In both cases, the documents had titles indicating they related to safety and warranty information, and therefore were ruled insufficient...

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SCOTUS Hearing Arbitration Case Wednesday; Spotlight On State Cases

By Liz Kramer | February 21 2017

Appealing Arbitration Decisions, Validity of Arbitration Agreement While the Supreme Court has put off hearing a more contentious arbitration case until the fall (presumably in hopes that it will have nine justices by then), tomorrow it will hear the nursing home arbitration case from Kentucky.  I look forward to listening to the questions and trying to figure out why the Justices...

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3 Class Actions, 3 Motions to Compel Arbitration, 1 Class Action Survives

By Liz Kramer | February 10 2017

Class Arbitration, Validity of Arbitration Agreement The Ninth, Sixth, and Third Circuits all recently issued decisions about whether putative class or collective actions could proceed despite the existence of arbitration clauses.  In two of those decisions, the courts found the arbitration agreements did not allow for class arbitration and therefore dismissed the...

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