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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Eighth Circuit Shows How Difficult It Is To Prove Arbitration Agreement Unconscionable Due To Cost

By Liz Kramer | March 25 2015

Class Arbitration, Validity of Arbitration Agreement Almost two years ago in American Express Co. v. Italian Colors, SCOTUS significantly narrowed, but did not overrule, the "effective vindication" doctrine, which allows plaintiffs to invalidate an arbitration agreement if it precludes them from effectively vindicating their federal statutory rights.  A decision today...

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SCOTUS Will Hear Arbitration Case in October Term

By Liz Kramer | March 23 2015

Class Arbitration, Litigation vs. Arbitration, Validity of Arbitration Agreement Just as I was beginning to worry that arbitration had fallen out of favor at the nation's highest court... today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an appeal from a California Court of Appeals.  In DIRECTV, a case pitting Kirkland &...

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Eighth Circuit Finds Former Employees Lack Standing To Challenge Employer’s New Arbitration Policy

By Liz Kramer | March 19 2015

Class Arbitration, Litigation vs. Arbitration What's one way to derail a potentially large collective action about Fair Labor Standards Act violations?  To implement a new arbitration policy within days, thereby ensuring that your current employees cannot join the court case.  At least, that was the successful tactic used by a Chicago restaurant...

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Beyond the Headlines Part II: What The New CFPB Report Teaches Us About Arbitration v. Litigation

By Liz Kramer | March 12 2015

Class Arbitration, Litigation vs. Arbitration In my last post, I shared some of the highlights from the first half of the new CFPB Arbitration Study.  This post covers the second half of the report, with juicy information gleaned from CFPB's analysis of almost 2,000 actual consumer arbitrations and its comparison of those results to actual consumer court...

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Beyond the Headlines Part I: What The New CFPB Report Teaches Us About Arbitration Clauses

By Liz Kramer | March 11 2015

Arbitration Rules/Procedures, Litigation vs. Arbitration The Consumer Financial Protection Bureau released an “Arbitration Study” exceeding 700 pages to Congress this week.  You have likely heard the headlines – most commentators assume that the CFPB will use the study to support an effort to restrict or regulate the use of “pre-dispute” arbitration in financial...

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Third Circuit Finds Pennsylvania Statute Preempted by FAA

By Liz Kramer | March 5 2015

Appealing Arbitration Decisions The Third Circuit recently found that the Federal Arbitration Act preempts a Pennsylvania statute that restricts corporate plaintiffs in state and federal court in Pennsylvania to those companies that are registered to do business in Pennsylvania.  Generational Equity, LLC v. Schomaker, 2015 WL 708481 (3d Cir. Feb....

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Why The Arbitration Award Against Adrian Peterson Was Vacated

By Liz Kramer | February 26 2015

Appealing Arbitration Decisions A federal judge in Minnesota today vacated the arbitration award that confirmed the NFL's discipline of Adrian Peterson.  You can read the decision here.  The judge found two separate bases for vacating the award: 1) the award failed to "draw its essence" from the parties' Collective Bargaining Agreement; and 2)...

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Lessons From Lance Armstrong About the Finality of Arbitration Awards

By Liz Kramer | February 18 2015

Appealing Arbitration Decisions, Arbitration Rules/Procedures On February 4, an arbitration panel ordered Lance Armstrong to pay $10 million to his former promotions company, SCA, as a result of his “unparalleled pageant of international perjury, fraud and conspiracy” that covered up his use of performance-enhancing drugs.  (Read the NYT story about it here.)  What is...

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Fifth Circuit Un-Vacates Arbitration Award, Offering Guidance to District Courts

By Liz Kramer | February 12 2015

Appealing Arbitration Decisions "When an arbitration goes an opponent's way on the basis of questionable contract interpretation, parties often seek refuge in [Section] 10(a)(4).  But the Supreme Court has made clear that district courts' review of arbitrators' awards under [that Section] is limited to the 'sole question... of whether the...

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Rare Claim Falls Outside Arbitration Agreement, Creates Piecemeal Litigation

By Liz Kramer | February 6 2015

Scope of Arbitration Agreement Because of the strong federal policy favoring arbitration, and cases providing that any doubt about the scope of an arbitration agreement must be resolved in favor of arbitration, it is uncommon to find a decision holding that the parties' claims are not within the scope of their arbitration agreement.  But, the...

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