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 Class Arbitration Posts
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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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SCOTUS Allows California to Interpret Federal Arbitration Act As Excluding Private Attorney General Claims

By Liz Kramer | January 20 2015

Class Arbitration, Validity of Arbitration Agreement Today, the U.S. Supreme Court denied the petition for certiorari in the Iskanian case from the California Supreme Court.  In doing so, SCOTUS allowed one of the most interesting Federal Arbitration Act interpretations in recent years to stand.  As you may recall, the decision held that the Federal Arbitration Act...

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Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid

By Liz Kramer | November 13 2014

Class Arbitration, Validity of Arbitration Agreement A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble's website was not enforceable.  This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let...

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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)....

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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...

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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...

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California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements

By Liz Kramer | June 25 2014

Class Arbitration, Litigation vs. Arbitration This week the Supreme Court of California held that the FAA preempts California's 2007 Gentry ruling, one that protected employees from nearly all class action waivers in arbitration agreements.  Iskanian v. CLS Transp. Los Angeles, LLC, __ P.3d__, 2014 WL 2808963 (Cal. June 23, 2014).  However, asserting its...

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