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 Litigation vs. Arbitration Posts
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Is Refusal To Pay Fees A Way Out Of Arbitration?

By Liz Kramer | August 10 2016

Arbitration Rules/Procedures, Litigation vs. Arbitration The 9th Circuit recently allowed a claimant to proceed in court after her arbitration had been terminated due to her  failure to pay half the arbitration fees. Tillman v. Tillman, __ F.3d __, 2016 WL 3343785 (9th Cir. June 15, 2016). The case involved a client's malpractice claim against her lawyers, which was...

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What’s in a Name?: Defining Arbitration Across the Circuits

By Liz Kramer | August 3 2016

ArbitrationNation Roadmaps (primers), Litigation vs. Arbitration What is “arbitration”? Although courts often use and apply the word, rarely do they stop to define it.  While the FAA concerns agreements to “settle by arbitration a controversy,” the FAA does not define “arbitration,” leaving the question to the courts. Lacking definitive guidance from the U.S. Supreme...

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Class Rep Can Opt Out of Arbitration for All (And Other Recent State Court Anomalies)

By Liz Kramer | July 15 2016

Class Arbitration, Litigation vs. Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate Continuing last week’s theme of “States Gone Wild,” here are three more oddball summer decisions from state supreme courts. All of them find interesting paths around federal case law (IMHO). Georgia Says Class Complaint Is Deemed Arbitration Opt Out For All Class Members In Bickerstaff v. SunTrust Bank,...

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3 Year-End Arbitration Lessons From Appellate Courts

By Liz Kramer | December 21 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Waiver of Right to Arbitrate Before I can sum up 2015 in arbitration (next post!), I need to report on some new cases coming out of the federal and state appellate courts in recent weeks.  Two are just good reminders of basic arbitration law, but the third addresses an interesting question of double recovery. Our first "reminder" case comes...

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“Older Workers” Do Not Have To Arbitrate Statutory Employment Claim

By Liz Kramer | November 1 2015

Class Arbitration, Litigation vs. Arbitration, Validity of Arbitration Agreement Arbitration is having its 15 minutes of fame.  Thanks to a series in the New York Times, my inbox is full of links to the articles, questions about the information, and fascinating commentary.  [Next time I am in Oakland, I am totally having the "Scalia" cocktail at Italian Colors.]  With the far-reaching audience...

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CFPB Likely To Require Access To Class Actions And Data On Individual Arbitrations

By Liz Kramer | October 23 2015

Class Arbitration, Litigation vs. Arbitration Richard Cordray, Director of the Consumer Financial Protection Bureau, has positioned himself as the Boogeyman that financial companies fear this Halloween season.  Earlier this month, the CFPB outlined the proposals under consideration for regulating arbitration in the consumer financial industry.  The proposals...

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To (b)(1) or not to (b)(1): What to Call your Rule 12 Arbitration Motion

By Liz Kramer | August 20 2015

Litigation vs. Arbitration, Uncategorized Let's say your client gets sued in court, the parties have an arbitration agreement, and you want to compel arbitration right away and not mess around with any other court proceedings. You already know you can make a motion to compel instead of an Answer, but you are stuck on this: what do you call the...

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Defendant’s Failure To Pay Arbitration Fees Cannot Stymie Claims Against It

By Liz Kramer | May 28 2015

Arbitration Rules/Procedures, Litigation vs. Arbitration Usually, when faced with a respondent who refuses to pay its share of the arbitration fees, a claimant simply pays both sides' fees, so that the arbitration can proceed.  A new case out of the Tenth Circuit answers the question: what happens if it does not pay both sides' fees?  Pre-Paid Legal Services, Inc. v....

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Fifth Circuit Finds Parties Can Authorize Arbitrators By Their Conduct

By Liz Kramer | May 12 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Scope of Arbitration Agreement The Fifth Circuit un-vacated an arbitration award last week, holding the district court had wrongly concluded that the court was the proper decision-maker on contract formation.  Although courts are presumptively authorized to decide whether an arbitration agreement exists, the Fifth Circuit found the parties...

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When Can A Party Recover Attorneys’ Fees Incurred Confirming An Arbitration Award?

By Liz Kramer | May 7 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Scope of Arbitration Agreement If you won your arbitration, it is vexing to have to spend many thousands more in attorneys' fees opposing a motion to vacate the arbitration award.  (That is especially true if you signed up for arbitration thinking it was faster and avoided appeals.)  But, can you ask the court to award you the attorneys' fees...

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