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

Resistance Or Retaining Shred of Dignity? Kentucky Responds On Kindred

By Liz Kramer | November 10 2017

Validity of Arbitration Agreement If I had to choose a favorite subset of arbitration cases, it might be the ones that come after SCOTUS remands to a state supreme court.  How does a state high court full of accomplished professionals, the cream of the legal crop in their state, respond after the U.S. Supreme Court has found their previous...

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The Arbitration Resistance May Look Like This… (Post #300)

By Liz Kramer | November 6 2017

Scope of Arbitration Agreement, Validity of Arbitration Agreement What happens when state courts disagree with SCOTUS's interpretation of the Federal Arbitration Act?  They resist, and they have a thousand different ways of doing so.  The Mississippi Supreme Court demonstrated one way to resist recently in Pedigo v. Robertson, Rent-A-Center, Inc., 2017 WL 4838243 (Miss. Oct. 26,...

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Enforcing Nursing Home Arbitration Agreements Post-Kindred

By Liz Kramer | October 19 2017

Validity of Arbitration Agreement Just five months ago, the U.S. Supreme Court weighed in on a nursing home arbitration dispute in Kindred Nursing Centers v. Clark.  It held that the Kentucky supreme court's rationale for not enforcing the arbitration agreement was preempted by the Federal Arbitration Act.  Before that, multiple state courts had...

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Non-Signatories Succeed In Compelling Arbitration In State Courts

By Liz Kramer | October 11 2017

Validity of Arbitration Agreement The high courts of two states have allowed non-signatories to compel arbitration in recent weeks.  The cases show courts are addressing non-signatory issues using different standards and raise important drafting issues for joint ventures and business affiliates. In Locklear Automotive Group, Inc. v. Hubbard, 2017...

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Hawaiian Punch: State Supreme Court Stands Up to SCOTUS on Arbitration

By Liz Kramer | August 10 2017

Validity of Arbitration Agreement In January of 2016, SCOTUS granted review of an arbitration case from Hawaii, but summarily vacated and remanded it without analysis.  (Unless you consider "Please read DIRECTV" substantive analysis.)  Here's the risk of that course of action: Hawaii can refuse to change its mind. Last month, in Narayan v. The...

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First Circuit Finds Class of Independent Truckers Excluded From Federal Arbitration Act

By Liz Kramer | May 29 2017

Class Arbitration, Validity of Arbitration Agreement The Federal Arbitration Act has been in effect for nearly 100 years (92, to be precise).  Nevertheless, the First Circuit found two issues of first impression to address this month.  In Oliveira v. New Prime, Inc., 2017 WL 1963461 (1st Cir. May 12, 2017), the court refused to compel arbitration of a class action...

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SCOTUS Reverses KY Nursing Home Arbitration Decision; Refuses To Prioritize Right To Jury Trial

By Liz Kramer | May 15 2017

Validity of Arbitration Agreement, Year In Review Just as I predicted, SCOTUS reversed the Kentucky Supreme Court's decision in Kindred this morning.  The interesting piece, though, is that the seven member majority went out of its way to cut off some of the "on trend" methods that state courts have been using to avoid arbitration...

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Maryland’s Highest Court Finds Small Claims Court Action Waived Right To Arbitrate

By Liz Kramer | May 8 2017

Class Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate It is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause?  The court's answer was yes,...

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Fifth Circuit Dances On Head of Arbitration Pin

By Liz Kramer | April 29 2017

Validity of Arbitration Agreement Demonstrating just how difficult it can be to separate questions about the "formation" of an arbitration agreement from the "validity" of that agreement, the Fifth Circuit found this month that when an argument was applied to two of the parties' three agreements, it related to their formation, but when the same...

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8th Circuit Finds ADEA Does Not Preclude Arbitration

By Liz Kramer | April 28 2017

Class Arbitration, Validity of Arbitration Agreement One of the few "get out of arbitration free" cards that SCOTUS offers litigants is this: find another federal statute that clearly entitles plaintiff(s) to a court trial. In a recent 8th Circuit case, that court carefully considered, and then rejected, the argument that the Age Discrimination in Employment Act (ADEA)...

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