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
Supreme Court Sunrise

SCOTUS Will Hear Arbitration Case in October Term

By Liz Kramer | March 23 2015

Class Arbitration, Litigation vs. Arbitration, Validity of Arbitration Agreement Just as I was beginning to worry that arbitration had fallen out of favor at the nation's highest court... today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an appeal from a California Court of Appeals.  In DIRECTV, a case pitting Kirkland &...

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Eighth Circuit Finds Former Employees Lack Standing To Challenge Employer’s New Arbitration Policy

By Liz Kramer | March 19 2015

Class Arbitration, Litigation vs. Arbitration What's one way to derail a potentially large collective action about Fair Labor Standards Act violations?  To implement a new arbitration policy within days, thereby ensuring that your current employees cannot join the court case.  At least, that was the successful tactic used by a Chicago restaurant...

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Beyond the Headlines Part II: What The New CFPB Report Teaches Us About Arbitration v. Litigation

By Liz Kramer | March 12 2015

Class Arbitration, Litigation vs. Arbitration In my last post, I shared some of the highlights from the first half of the new CFPB Arbitration Study.  This post covers the second half of the report, with juicy information gleaned from CFPB's analysis of almost 2,000 actual consumer arbitrations and its comparison of those results to actual consumer court...

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Stack of waste paper

Beyond the Headlines Part I: What The New CFPB Report Teaches Us About Arbitration Clauses

By Liz Kramer | March 11 2015

Arbitration Rules/Procedures, Litigation vs. Arbitration The Consumer Financial Protection Bureau released an “Arbitration Study” exceeding 700 pages to Congress this week.  You have likely heard the headlines – most commentators assume that the CFPB will use the study to support an effort to restrict or regulate the use of “pre-dispute” arbitration in financial...

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Who Decides Whether New Claims Are Precluded By Old Arbitration? An Arbitrator, Says 2d Circuit

By Liz Kramer | January 22 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration We all know that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) apply with equal force to both arbitration awards and court orders.  But, if your adversary brings new claims that you believe have already been determined in arbitration, where do you go to shut down those...

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New Survey Dispels Common Myths About Arbitration

By Liz Kramer | November 20 2014

Litigation vs. Arbitration Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award?  That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law. The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine...

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California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements

By Liz Kramer | June 25 2014

Class Arbitration, Litigation vs. Arbitration 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...

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sheet music

First Things First: There Must Be An Arbitration Agreement In Order To Compel Arbitration

By Liz Kramer | June 10 2014

Litigation vs. Arbitration, Validity of Arbitration Agreement Two courts recently refused to compel arbitration because the defendants could not prove that the parties had entered into an arbitration agreement at all.  Therefore, the musical accompaniment to this post is "Do Re Mi" from The Sound of Music.  "Let's start at the very beginning, a very good place to start....

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Wintertree

Think You Have A Chance Of Vacating Your Arbitration Award? Read this.

By Liz Kramer | February 25 2014

Appealing Arbitration Decisions, Litigation vs. Arbitration Just how hard is it to vacate an arbitration award?  The Sixth Circuit recently held that even if the arbitrator reached a result directly contrary to federal precedent, the arbitration award would be upheld.  And the Tenth Circuit found that even if the arbitrator based his award on an agreement that does not...

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Checkbook

No Federal Presumption of Arbitrability Until Court Finds Valid Arbitration Agreement

By Liz Kramer | February 12 2014

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply?  The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass...

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