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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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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Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration

By Liz Kramer | December 4 2013

Class Arbitration, Validity of Arbitration Agreement After three federal circuits had already refused to defer to the NLRB's decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB's critical holding: that precluding class arbitrations is a violation of federal labor law.  D.R. Horton, Inc. v. Nat'l Labor Relations Bd., __...

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West Virginia Has A Change Of Heart About Arbitration

By Liz Kramer | November 24 2013

Class Arbitration, Validity of Arbitration Agreement A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country.  There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses.  (Recall its arbitration feud with SCOTUS in 2012?)  But, this...

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LawJournals

Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts

By Liz Kramer | November 8 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a "gateway" issue of arbitrability that defaults to courts.  This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court...

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Halloween Special: Scary Results if Employers Overreach in Arbitration Clauses

By Liz Kramer | October 31 2013

Arbitration Rules/Procedures, Class Arbitration, Validity of Arbitration Agreement No haunted house can scare general counsel as much as an opinion invalidating their company's arbitration clause and thereby allowing a class action to proceed.  So, here is a Halloween tale for all to keep in mind. Ralphs Grocery Company hired Zenia Chavarria to work in the deli of one of its grocery stores. ...

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3d Circuit Says Delaware Can’t Have Secret Arbitrations By Judges

By Liz Kramer | October 28 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration The Third Circuit ruled last week 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. In 2009, the Delaware courts decided to provide arbitration.  The state amended its laws to create an arbitration...

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