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 →

Latest Posts
Running track hurdle

Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid

By Liz Kramer | September 26 2014

Class Arbitration, Validity of Arbitration Agreement Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to Missouri’s recent ruling). Alltel Corp. v. Rosenow, 2014 WL 4656609 (Ark. Sept. 18, 2014)....

READ MORE

worldinpieces

End Of The World As We Know It (for Employment Arbitration)?

By Liz Kramer | September 20 2014

Validity of Arbitration Agreement Cue the R.E.M folks, because the Supreme Court of Missouri issued a 4-3 opinion recently that appears to upend many employment arbitration agreements in that state.  Baker v. Bristol Care, Inc., __ S.W.3d__, 2014 WL 4086378 (Mo. Aug. 19, 2014).  However, the situation is not as dire as it may seem. The high...

READ MORE

Orange mouse

Arbitration Agreement On Barnes & Noble’s Website Not Enforceable

By Liz Kramer | September 10 2014

Validity of Arbitration Agreement In a case between an on-line customer and Barnes & Noble, the Ninth Circuit recently refused to enforce the arbitration agreement found in the website's "Terms of Use." Nguyen v. Barnes & Noble Inc., __ F.3d__, 2014 WL 4056549 (9th Cir. Aug. 18, 2014). The decision further calls into question the validity of...

READ MORE

Mount Rushmore, South Dakota

Seventh Circuit Finds Tribal Arbitration Is Unreasonable and Unconscionable

By Liz Kramer | August 29 2014

Class Arbitration, Validity of Arbitration Agreement In a victory for advocates who worry that the odds are impossibly stacked against consumers in some arbitral fora, the Seventh Circuit found that a class of borrowers did not have to proceed with arbitration conducted by the Cheyenne River Sioux Tribe (“Tribe”) in South Dakota "because the arbitral mechanism...

READ MORE

Nitty-Gritty Road Sign with dramatic clouds and sky.

Nitty Gritty Advice for Compelling Arbitration under the FAA

By Liz Kramer | August 21 2014

ArbitrationNation Roadmaps (primers) I regularly receive questions about compelling arbitration under the Federal Arbitration Act.  In particular, people ask : (1) Can I file a motion to compel before any other "complaint" is filed; (2) What should I call my motion?; and (3) What is with this 5-day rule hidden inside Section 4 of the FAA?  Wanting to...

READ MORE

Vegetables, Bulgarian Pepper

ArbitrationNation’s Third Anniversary Threesome

By Liz Kramer | August 14 2014

Arbitration Rules/Procedures, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate This week marks the third anniversary of this blog devoted to interpretations of the Federal Arbitration Act.  (Here's the first post.)  After 155 posts, can there possibly be more to say?  Yes, indeed.  Three new opinions from federal courts of appeals demonstrate how new issues keep "cropping" up in arbitration...

READ MORE

ShuswapBest28

Another Federal Appeals Court Finds Availability of Class Arbitration Is Question for Court

By Liz Kramer | August 1 2014

Class Arbitration In a footnote in Sutter, SCOTUS hinted that the question of whether an arbitration agreement allowed for class arbitration may be one of the “gateway” questions of arbitrability that are presumptively for courts to decide. Last year, the Sixth Circuit went one step further, finding that the availability of class...

READ MORE

Mountain Reflection Sunset

Un-Vacated: Appellate Courts Save Arbitration Awards

By Liz Kramer | July 22 2014

Appealing Arbitration Decisions Two posts ago, I reviewed four recent cases in which appellate courts enforced arbitration awards that district courts had refused to enforce.  Today I review two more appellate courts coming to the rescue of arbitration, this time by confirming arbitration awards that had been vacated by lower courts. In SPX...

READ MORE

3Longhorns

Arbitration Award Vacated Because Arbitrators Were Impartial

By Liz Kramer | July 15 2014

Appealing Arbitration Decisions, Arbitration Rules/Procedures Although we usually expect arbitrators to be impartial, the Supreme Court of Texas vacated an arbitration award because the chosen arbitrators were too impartial. Americo Life, Inc. v. Myer, __S.W.3d__, 2014 WL 2789429 (Tex. June 20, 2014). Because the court found the parties' agreement allowed each side to choose an...

READ MORE

Action Shot of Soccer Goalie

Appellate Courts Saving Arbitration Agreements Right and Left

By Liz Kramer | July 9 2014

Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration.  The courts seem to be saying to defendants with arbitration agreements: don't worry if you lose in the trial court, we will be your Tim Howard and save you from the gaping jaws...

READ MORE