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 alone an arbitration
Class Arbitration
Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid
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). New Jersey grounded its decision on…
Seventh Circuit Finds Tribal Arbitration Is Unreasonable and Unconscionable
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 specified in the agreement is…
Another Federal Appeals Court Finds Availability of Class Arbitration Is Question for Court
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 arbitration defaults to the courts. …
California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements
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 Californian-ness, the court found an clever…
Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability
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 agreement or the…
Arbitration Clauses Survive Their Contracts 99% Of The Time
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 class…
Employer's Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails
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 found that it was the…
SCOTUS Will Not Reconsider Fate Of Delaware's Business Arbirations; NLRB's Class Action Arbitration Decision Loses Again
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. Therefore, that decision is final and Delaware will now…
The Preemption Club
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 itself. It keeps coming up with novel arguments…