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

CompuCredit Corp. v. Greenwood: 8-1 SCOTUS Decision Finds Credit Repair Organizations Act Does Not Preclude Arbitration

By Liz Kramer | January 10 2012

Litigation vs. Arbitration, Validity of Arbitration Agreement In a very narrow decision today, the U.S. Supreme Court found that the Credit Repair Organizations Act (CROA) does not preclude the arbitration of consumer suits alleging violations of that Act.  CompuCredit Corp. v. Greenwood, 565 U.S. ___ (2012).  The 8-1 decision was written by (who else?) Justice Scalia, with...

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Second Circuit Finds Courts Have Power To Enjoin Arbitration In Limited Circumstances

By Liz Kramer | November 17 2011

Appealing Arbitration Decisions, Litigation vs. Arbitration, Validity of Arbitration Agreement The Second Circuit just held that a federal court has the power to enjoin an ongoing arbitration.  In re Am. Express Fin. Advisors Sec. Litig., ___ F.3d ___, 2011 WL 5222784  (2nd Cir. 2011).  While many litigants would no doubt like a federal court to enjoin their arbitrations -- especially when arbitrators refuse...

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Dear Parties: “Piecemeal” Schmeecemeal. Just Arbitrate. Love, SCOTUS

By Liz Kramer | November 8 2011

Litigation vs. Arbitration, Uncategorized Despite the Supreme Court's best efforts, some myths of arbitration law just will not die.  In yesterday's per curiam decision of the Supreme Court, the Justices tried to put a stake through the heart of a common myth: that a party may successfully avoid a motion to compel arbitration by arguing that not all claims...

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Arbitration Clause Sticks To Non-Signatories Like A Half-Eaten Halloween Sucker

By Liz Kramer | November 3 2011

Litigation vs. Arbitration, Scope of Arbitration Agreement, Waiver of Right to Arbitrate Two recent decisions illustrate how individuals that did not sign a contract can be bound by that contract's arbitration provisions.  In the first, Blaustein v. Huete, 2011 WL 5103759 (5th Cir. Oct. 26, 2011), an individual member of an LLC, Huete, argued he should not be bound by the arbitration clause between...

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“I’m Good Enough, I’m Smart Enough, And Dog-gone It” I Don’t Like Mandatory Arbitration

By Liz Kramer | October 18 2011

Litigation vs. Arbitration, Uncategorized, Validity of Arbitration Agreement Minnesota Senator Al Franken, among others, responded to the Supreme Court’s Concepcion decision  by introducing a bill called the Arbitration Fairness Act of 2011 (S.987, also in the House as H.R. 1873) last May, which would legislatively nullify arbitration provisions in various types of agreements.  The Senate...

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Precluding Arbitration in Legislation: Supreme Court Preview

By Liz Kramer | October 7 2011

Litigation vs. Arbitration, Validity of Arbitration Agreement Since the last post dealt with legislative overrides of arbitration agreements, this one will expand on that theme with a preview of an upcoming Supreme Court case.  In CompuCredit Corp. v. Greenwood, to be heard on October 11, the Supreme Court will decide whether Congress intended to prohibit arbitration of...

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Employee-on-Employee Violence Not Within Scope of Arbitration Agreement

By Liz Kramer | September 29 2011

Litigation vs. Arbitration, Scope of Arbitration Agreement Last week the Eleventh Circuit interpreted the scope of the arbitration agreement within a plaintiff's employment contract to exclude civil claims stemming from her sexual assault by fellow employees.  In doing so, the court may have signaled a discomfort with sending civil claims based on criminal conduct to...

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Yes, Virginia, There is Injunctive Relief in Court Despite An Arbitration Clause

By Liz Kramer | September 14 2011

Arbitration Rules/Procedures, Litigation vs. Arbitration A recent decision from the Western District of Oklahoma reminds all litigators that you may be able to get preliminary injunctive relief from the courts, despite having a valid arbitration agreement.  Although this seems to fly in the face of the courts’ general arbitration refrain (stolen from M.C. Hammer:...

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Proving A Waiver of Arbitration Rights Is Now Easier In Construction Cases (8th Cir.)

By Liz Kramer | August 26 2011

Litigation vs. Arbitration, Waiver of Right to Arbitrate A party with an arbitration agreement can waive its right to arbitrate by acting inconsistently with that right, usually by "invoking the litigation machinery" before demanding arbitration.  However, the federal circuits are split over whether a party asserting a waiver of arbitration must also show it was...

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