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 Arbitration Rules/Procedures Posts

Circuit Split: Does Stolt-Nielsen Allow Class Arbitrations Based On Implicit Contract Interpretation?

By Liz Kramer | May 23 2012

Appealing Arbitration Decisions, Arbitration Rules/Procedures, Class Arbitration, Scope of Arbitration Agreement The Fifth Circuit just issued a decision openly disagreeing with how the Second Circuit has interpreted both the Stolt-Nielsen decision and case law regarding the level of deference that courts owe arbitrators.  In Reed v. Florida Metropolitan Univ., Inc., __ F.3d __, 2012 WL 1759298 (5th Cir. May 18, 2012), the...

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More Administrative Agency Actions on Arbitration

By Liz Kramer | May 18 2012

Arbitration Rules/Procedures, Class Arbitration, 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...

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Non-Binding Arbitration May Be A Condition Precedent, But It Does Not Toll Your Statute of Limitation

By Liz Kramer | May 10 2012

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...

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Third Circuit Issues Reminder That Stolt-Nielsen Decision Does Not Preclude Class Arbitration

By Liz Kramer | April 11 2012

Appealing Arbitration Decisions, Arbitration Rules/Procedures, Class Arbitration, 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,...

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Arbitration Just Got More Expensive for Arkansas Companies: Self-Representation Disallowed by Ark. Supreme Court

By Liz Kramer | April 3 2012

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,...

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Rule-Making Comes To The Rescue of Class Arbitration

By Liz Kramer | February 9 2012

Arbitration Rules/Procedures, Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A reasonable person may have thought that the Supreme Court effectively killed off class arbitrations with its decisions in Stolt-Nielsen and Concepcion, but at least two government agencies have recently made decisions that ensure financial consumers and employees can bring classwide claims in some...

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Third Circuit Says “Bring On De-Funct!”

By Liz Kramer | January 25 2012

Arbitration Rules/Procedures, Validity of Arbitration Agreement In a 2-1 decision, the Third Circuit held last week that the arbitration agreement in a personal computer purchase was valid, despite its mandate of a defunct arbitral forum.  Its decision, Khan v. Dell Inc., ___ F.3d ___, 2012 WL 163899 (3d Cir. Jan. 20, 2012), is in line with the decision of the South Dakota...

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South Dakota Disagrees with Illinois and Pennsylvania, Finding Choice of Defunct Arbitration Rules is Not “Integral” To Agreement

By Liz Kramer | January 4 2012

Arbitration Rules/Procedures, Validity of Arbitration Agreement Earlier in 2011, courts in both Pennsylvania and Illinois issued decisions finding that when a consumer's arbitration agreement called for the National Arbitration Forum (NAF) to administer the arbitration, but the NAF no longer administered consumer disputes, the arbitration agreements were unenforceable.  Those...

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An “Impasse” Of One Or Two Months Over Arbitrator Selection Does Not Entitle Court to Appoint Arbitrator

By Liz Kramer | December 21 2011

Arbitration Rules/Procedures The Supreme Court of Texas issued three decisions last week that all relate to arbitrator selection and offer reminders to drafters and litigators that arbitrator selection is a critical component of arbitration agreements. Two of the decisions involved tort claims against the same defendant, a cemetery owner. ...

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Federal Judge Disqualifies Lawyers Based On Misconduct In Arbitration

By Liz Kramer | October 12 2011

Appealing Arbitration Decisions, Arbitration Rules/Procedures The lawyers who sought to disqualify their opposing counsel during a pending arbitration must have been giddy when they drew Judge Shira Scheindlin of the Southern District of New York as their judge.  Judge Scheindlin, who is famously tough on unscrupulous lawyers, did not disappoint.  She went out of her way...

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