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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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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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...

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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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Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability

By Liz Kramer | April 10 2014

Class Arbitration, Validity of Arbitration Agreement In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin to summary judgment, but the FAA states in Section Four: "If the making of the arbitration...

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Arbitration Clauses Survive Their Contracts 99% Of The Time

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it?  I usually say yes, and thankfully the Sixth Circuit backed me up. In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a...

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Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement In the past year, if I wrote about "FLSA" and "arbitration" in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act.  Today, however, is different.  The Eleventh Circuit last week...

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SCOTUS Will Not Reconsider Fate Of Delaware’s Business Arbirations; NLRB’s Class Action Arbitration Decision Loses Again

By Liz Kramer | March 24 2014

Class Arbitration, Validity of Arbitration Agreement SCOTUS announced today that it would not review the Third Circuit's decision in Strine v. Delaware Coalition for Open Government, Inc, holding that Delaware’s Chancery Court could not offer its judges’ services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. ...

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The Preemption Club

By Liz Kramer | March 3 2014

Class Arbitration, Uncategorized, Validity of Arbitration Agreement, Waiver of Right to Arbitrate California is the Judd Nelson of The Preemption Club.  (Or the John Bender, if you prefer using character names.)  The Supreme Court has sent the California courts to preemption detention for ignoring the Federal Arbitration Act in blockbuster, groundbreaking cases (see Concepcion).  But California cannot help...

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