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 Validity of Arbitration Agreement Posts
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Arbitration Agreement On Barnes & Noble’s Website Not Enforceable

By Liz Kramer | September 10 2014

Validity of Arbitration Agreement In a case between an on-line customer and Barnes & Noble, the Ninth Circuit recently refused to enforce the arbitration agreement found in the website's "Terms of Use." Nguyen v. Barnes & Noble Inc., __ F.3d__, 2014 WL 4056549 (9th Cir. Aug. 18, 2014). The decision further calls into question the validity of...

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Mount Rushmore, South Dakota

Seventh Circuit Finds Tribal Arbitration Is Unreasonable and Unconscionable

By Liz Kramer | August 29 2014

Class Arbitration, Validity of Arbitration Agreement 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...

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ArbitrationNation’s Third Anniversary Threesome

By Liz Kramer | August 14 2014

Arbitration Rules/Procedures, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate This week marks the third anniversary of this blog devoted to interpretations of the Federal Arbitration Act.  (Here's the first post.)  After 155 posts, can there possibly be more to say?  Yes, indeed.  Three new opinions from federal courts of appeals demonstrate how new issues keep "cropping" up in arbitration...

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Appellate Courts Saving Arbitration Agreements Right and Left

By Liz Kramer | July 9 2014

Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration.  The courts seem to be saying to defendants with arbitration agreements: don't worry if you lose in the trial court, we will be your Tim Howard and save you from the gaping jaws...

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Eighth Circuit Finds Incorporation Of AAA Rules Authorizes Arbitrator To Determine Whether Non-Signatory Can Arbitrate

By Liz Kramer | July 1 2014

Arbitration Rules/Procedures, Validity of Arbitration Agreement In a short and sweet opinion issued just six weeks after argument, the Eighth Circuit yesterday held that an arbitrator was authorized to decide whether a non-signatory was able to arbitrate a dispute.  Eckert/Wordell Architects, Inc. v. FJM Props. of Willmar, LLC, __ F.3d __, 2014 WL 2922343 (8th Cir. June 30,...

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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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Fischietto Rosso / Red Whistle

Dodd-Frank Only Precludes Arbitration of Whistleblower Actions

By Liz Kramer | May 8 2014

Validity of Arbitration Agreement The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements betwen publicly-traded employers and their employees.  Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir. May 5, 2014).  Instead, "where the plaintiff is not pursuing Dodd-Frank whistleblower...

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Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability

By Liz Kramer | April 10 2014

Class Arbitration, Validity of Arbitration Agreement 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...

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Arbitration Clauses Survive Their Contracts 99% Of The Time

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement 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...

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Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement 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...

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