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

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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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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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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