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

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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Courts Stopping Non-Signatories From Compelling Arbitration Through Equitable Estoppel

By Liz Kramer | October 17 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement Now that we know the Supreme Court is not going to be addressing non-signatories' ability to compel arbitration this term (at least not in the Toyota case), we can take a moment to look at what lower courts are doing with that issue.   In short, the trend is for courts to clarify that it is very difficult...

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Second and Ninth Circuits Allow Employers To Preclude Collective FLSA Claims, Rejecting NLRB Ruling

By Liz Kramer | September 4 2013

Class Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In January of this year, the Eighth Circuit was the first federal appellate court to refuse to adopt the National Labor Relations Board's ruling on class action waivers in employment contracts.  (The previous year, in D.R. Horton, the NLRB declared it a violation of federal labor law for employers to require...

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First State Court Decision Is Reversed Under SCOTUS’ Amex Ruling

By Liz Kramer | August 5 2013

Class Arbitration, Validity of Arbitration Agreement Put this post in the "I called it" category. On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration.  On June 20, the U.S. Supreme Court decided...

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Eleventh Cir. Applies Sutter to Affirm Class Arbitration; Ninth Cir. Applies Concepcion To Preempt Montana Law

By Liz Kramer | July 17 2013

Appealing Arbitration Decisions, Class Arbitration, Validity of Arbitration Agreement Within weeks of its issuance, SCOTUS's Sutter decision is already making an impact on other cases. Both the Eleventh Circuit and the D.C. Court of Appeals cite Sutter repeatedly in recent decisions that refuse to vacate arbitration awards.  Of course, new decisions are not the only ones that reverberate:...

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SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations

By Liz Kramer | June 20 2013

Class Arbitration, Validity of Arbitration Agreement In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their...

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Massachusetts Invalidates Arbitration Agreement Because Plaintiffs Could Not Effectively Pursue Small Value Claims

By Liz Kramer | June 13 2013

Class Arbitration, Validity of Arbitration Agreement As we were waiting for SCOTUS's decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts.  In an opinion that could be a blueprint for other plaintiff-friendly states, the supremes in Massachusetts held that courts may invalidate...

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SCOTUS Affirms Arbitrator’s Decision To Allow Class Arbitration in Sutter

By Liz Kramer | June 10 2013

Appealing Arbitration Decisions, Class Arbitration The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties' agreement, her "construction holds, however good, bad, or ugly."  Oxford Health Plans LLC v. Sutter, 569 U.S. ___ (June...

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Ninth Circuit Revives California Law That Allows Plaintiffs Seeking Injunctive Relief To Avoid Arbitration

By Liz Kramer | April 17 2013

Class Arbitration, Validity of Arbitration Agreement More than one year ago, a three-judge panel of the Ninth Circuit determined that California case law, which precluded arbitration of claims asking for public injunctive relief, was preempted by the Federal Arbitration Act.  Upon rehearing the case en banc, the Court backpedaled.  Kilgore v. KeyBank Nat'l Assoc., __...

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Fourth Circuit Sends Franchisee To Individual Arbitration, Expands Application of Concepcion

By Liz Kramer | April 8 2013

Class Arbitration, Validity of Arbitration Agreement The Fourth Circuit issued a bold new arbitration decision last week, sending a putative class of shuttle drivers to arbitration while expanding its application of SCOTUS’ Concepcion decision beyond cases involving federal preemption of state arbitration law.  Muriithi v. Shuttle Express, Inc., __ F.3d __, 2013 WL...

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