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 →
Appealing Arbitration Decisions, Litigation vs. Arbitration Just after I posted about the awesome power of federal courts to enjoin other cases, the Federal Circuit reminds us the power is not absolute. In Sanofi-Aventis Deutschland Gmbh v. Genentech, Inc., __ F.3d __, 2013 WL 1921073 (Fed. Cir. May 10, 2013), it affirmed the district court's decision not to enjoin a foreign...
Appealing Arbitration Decisions In a dispute over whether an arbitrator has authority to grant a video game developer and publisher a perpetual license in the intellectual property as a remedy for the developer's fraud and breaches of contract, the Fifth Circuit found that the arbitrator's creative award must be upheld under the Federal Arbitration...
Appealing Arbitration Decisions One of the very few ways to show evident partiality by an arbitrator is to show the arbitrator had financial ties to a party or witness in the proceeding, another is to show the arbitrator prejudiced a party by reversing a procedural or evidentiary ruling during the hearing. The Sixth Circuit found a Michigan...
Appealing Arbitration Decisions In an opinion released yesterday, the Seventh Circuit schooled appellant's counsel first on the application of the New York Convention and Panama Convention, then on the high standard of review it applies to commercial arbitration awards, and finally expressed profound disappointment with the frequency of motions to...
Appealing Arbitration Decisions The Third Circuit refused to vacate an arbitrator's award, despite allegations that she failed to disclose contributions the defendant's parent company had made to her judicial campaign and failed to disclose that she co-taught a seminar with in-house counsel for the defendant's parent company. Freeman v....
Appealing Arbitration Decisions, Class Arbitration One year ago, the NLRB ruled in D.R. Horton, Inc. that it is a violation of federal labor law for employers to require their employees to sign arbitration agreements waiving class actions, and that any arbitration agreements waiving class arbitration would be void. This week, the Eighth Circuit became the first...
Appealing Arbitration Decisions, Class Arbitration, Validity of Arbitration Agreement Just last Friday, the Supreme Court agreed to review a second circuit court case that allowed a class action to proceed, despite arguments that the arbitration clause precluded any collective actions. The granting of these petitions is a fitting way to end a year in which there has been considerable discussion...
Appealing Arbitration Decisions, Waiver of Right to Arbitrate In answer to the proverbial question "how much litigation waives the right to arbitrate?," the Third Circuit has responded that ten months does the trick, if the party seeking arbitration has engaged in significant motion practice, regardless of whether any discovery was exchanged. In re Pharmacy Benefit Managers...
Appealing Arbitration Decisions, Class Arbitration, Waiver of Right to Arbitrate After an arbitration about-face by the defendant in a class action, the Eleventh Circuit ruled that the defendant had waived its right to compel arbitration by: participating in litigation for two years and affirmatively declining to enforce its arbitration agreement with the plaintiffs until after SCOTUS issued...
Appealing Arbitration Decisions In the last post, the Fifth Circuit affirmed an arbitration award against Morgan Keegan. The Ninth Circuit just affirmed an arbitration award against Morgan Keegan in a sister case. In less than two pages, the Ninth Circuit rejected Morgan Keegan's arguments that the arbitrators were partial or exceeded their...
