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

DOJ Message to SCOTUS: Do Not Enforce Arbitration Agreements That Invalidate Federal Statutory Rights

By Liz Kramer | February 7 2013

Class Arbitration, Validity of Arbitration Agreement On January 29, the U.S. Dept. of Justice filed an amicus brief supporting respondents in AmEx III, arguing that to enforce the class arbitration waiver would be to create a large loophole for important federal laws.  The Solicitor General has also asked to argue at the hearing on February 27.  To my knowledge, DOJ...

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Prius Owners Put the Brakes On Arbitration With Non-Signatory Toyota

By Liz Kramer | February 1 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate The Ninth Circuit ruled this week that a class of car owners could pursue their court claims against the manufacturer, Toyota, for product defects and false advertising, despite the existence of an arbitration agreement in each of the owners' purchase agreements with the car dealerships.  The court held that Toyota...

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Eighth Circuit “Owes No Deference” to NLRB Ruling on Class Arbitration

By Liz Kramer | January 10 2013

Appealing Arbitration Decisions, Class Arbitration One year ago, the NLRB ruled in D.R. Horton, Inc. that it is a violation of federal labor law for employers to require their employees to sign arbitration agreements waiving class actions, and that any arbitration agreements waiving class arbitration would be void.  This week, the Eighth Circuit became the first...

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2012 in Arbitration Law: Is Class Arbitration Naughty or Nice?

By Liz Kramer | December 20 2012

Class Arbitration, Year In Review The big issue in arbitration law in 2012 was class arbitration.  Many state court opinions that had found class arbitration waivers unconscionable were preempted under federal law based on application of Concepcion.  And the federal circuit courts developed a split on how to interpret Stolt-Nielsen in cases where...

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Preview of SCOTUS’s 2013 Double-Feature on Class Arbitration

By Liz Kramer | December 10 2012

Appealing Arbitration Decisions, Class Arbitration, Validity of Arbitration Agreement Just last Friday, the Supreme Court agreed to review a second circuit court case that allowed a class action to proceed, despite arguments that the arbitration clause precluded any collective actions.  The granting of these petitions is a fitting way to end a year in which there has been considerable discussion...

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Defendant Did Not “Waive” Goodbye to Arbitration Despite Litigating For 6 Months

By Liz Kramer | December 5 2012

Class Arbitration, Waiver of Right to Arbitrate In contrast to recent decisions from other circuit courts, the Fourth Circuit found a defendant did not waive its right to arbitrate, despite litigating for more than 6 months and conducting discovery.  Rota-McLarty v. Santander Consumer USA, Inc., __ F.3d __, 2012 WL 5936033 (4th Cir. Nov. 28, 2012). In this...

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Don’t Game The System: “A Motion To Compel Arbitration Will Almost Never Be Futile”

By Liz Kramer | November 6 2012

Appealing Arbitration Decisions, Class Arbitration, Waiver of Right to Arbitrate After an arbitration about-face by the defendant in a class action, the Eleventh Circuit ruled that the defendant had waived its right to compel arbitration by: participating in litigation for two years and affirmatively declining to enforce its arbitration agreement with the plaintiffs until after SCOTUS issued...

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Individual arbitration is plaintiff’s “only remedy, illusory or not” — Third Circuit

By Liz Kramer | August 30 2012

Class Arbitration, Validity of Arbitration Agreement The earthquake that was the Concepcion decision (in April of 2011) is still sending aftershocks throughout the judicial system.  In last week's ruling, the Third Circuit compelled individual arbitration in Homa v. American Express Co., 2012 WL 3594231(3d Cir. Aug. 22, 2012), a case in which the parties have been...

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Eleventh Circuit Finds FAA Preempts Nascent Florida Law

By Liz Kramer | August 21 2012

Class Arbitration, Validity of Arbitration Agreement The Eleventh Circuit has decided to proactively preempt Florida law, before it could get in the way of the FAA by favoring class arbitrations (despite contract language precluding them). In Pendergast v. Sprint Nextel Corp., __ F.3d. __, 2012 WL 3553466 (11th Cir. Aug. 20, 2012), a wireless customer wanted to...

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First Circuit Makes Circuit Split Lopsided In Favor Of Narrowing Impact Of Stolt-Nielsen

By Liz Kramer | July 4 2012

Arbitration Rules/Procedures, Class Arbitration, Scope of Arbitration Agreement With less colorful language than its last arbitration opinion, the First Circuit sided with the Second and Third Circuits in limiting the application of the 2010 Stolt-Nielsen decision on the availability of class arbitration.  Fantastic Sams Franchise Corp. v. FSRO Assoc. Ltd., __ F.3d __, 2012 WL 2402560 (1st Cir....

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