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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Arbitration Rules/Procedures, Validity of Arbitration Agreement A few months ago I posted about actions that FINRA and the NLRB were taking in support of allowing class arbitration, and those agencies have recently taken additional actions that help consumers or employees with relatively low dollar claims. The NLRB brought a complaint against 24 Hour Fitness USA, Inc. The...
Arbitration Rules/Procedures Maryland's highest court recently affirmed the dismissal of an employer's non-compete claims as time-barred, even though the employer argued that the parties' arbitration excused the untimely filing. Kumar v. Dhanda, __ A.3d ___, 2012 WL 1521567 (Md. May 2, 2012). The employee, a urologist, had signed a...
Validity of Arbitration Agreement Relying on the Rent-A-Center decision, the Eighth Circuit Court of Appeals issued a decision today that construed the parties' relevant arbitration agreement very narrowly, thereby ducking a decision about whether the larger "disputes" section of the contract was void under state law. That makes the Eighth Circuit...
Litigation vs. Arbitration Just a few months after its first Director took office in January of 2012, the Consumer Financial Protection Bureau is embarking on a study of arbitration. The CFPB announced on April 24 that it invites the public to send information about "how consumers and financial services companies are affected by...
Litigation vs. Arbitration A new survey found that Fortune 1,000 corporations are significantly less likely to arbitrate contract disputes today than they were in 1997. In the 1997 study, 85% of companies reported using arbitration in commercial contract disputes at least once during the prior three years. In 2011, however, only 60 percent...
Appealing Arbitration Decisions, Arbitration Rules/Procedures, Litigation vs. Arbitration Although courts and practitioners may think of the Stolt-Nielsen decision as the death knell of class arbitration, the Third Circuit's ruling last week serves as a reminder that the Stolt-Nielsen did not deal a mortal blow. In fact, in Sutter v. Oxford Health Plans LLC, __ F.3d __, 2012 WL 1088887 (3d Cir. April 3,...
Arbitration Rules/Procedures, Litigation vs. Arbitration The Supreme Court of Arkansas has joined Florida, Ohio, and Arizona (at least) in holding that a non-lawyer is guilty of the "unauthorized practice of law" if he or she attempts to represent a corporation in arbitration proceedings. Nisha v. Tribuilt Constr. Group, __ S.W.3d __, 2012 1034641 (Ark. Mar. 29,...
Validity of Arbitration Agreement The Missouri Supreme Court just acknowledged that its 2010 decision, finding a class arbitration waiver was unenforceable under state law, is preempted by the FAA, pursuant to the rationale of Concepcion. In Robinson v. Title Lenders, Inc., __ S.W.3d __, 2012 724669 (Mo. Mar. 6, 2012) and Brewer v. Mo. Title...
Validity of Arbitration Agreement Three state law decisions relating to arbitration were toppled recently, based on application of the U.S. Supreme Court's preemption decision in Concepcion. In Kilgore v. Keybank, __ F.3d __, 2012 WL 718344 (9th Cir. Mar. 7, 2012), the Ninth Circuit held that California case law, which precluded arbitration of...
Validity of Arbitration Agreement Building off last post's discussion of the Solymar case, and the surprisingly fuzzy line between challenges to the formation of contracts containing arbitration provisions and challenges to the validity of those contracts, here is a hypothetical for you to consider. (Why a hypothetical? Because it is spring...
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