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 Puzzler: Nevada’s Anti-Waiver Rule Preempted; California’s Anti-Waiver Rule Not Preempted

By Liz Kramer | October 7 2015

Class Arbitration, Validity of Arbitration Agreement Two opinions came out recently in disputes over the arbitrability of putative class actions alleging that employees were not paid for overtime (and other labor violations). In one, the Nevada Supreme Court acknowledged that its 2011 ruling, finding class action waivers in arbitration were unconscionable, is preempted....


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SCOTUS Selects Second Arbitration Case For 2015 Term

By Liz Kramer | October 2 2015

Validity of Arbitration Agreement 2015 has been a dry spell in arbitration decisions from the U.S. Supreme Court, but 2016 promises to be much more interesting.  In addition to the California case being heard next week, SCOTUS just granted certiorari in another California-based arbitration decision.  This one, MHN Government Services, Inc. v....



Kentucky Supreme Court Compares Giving Up Jury Trial To Giving Up Parental Rights; Refuses To Enforce Arbitration

By Liz Kramer | September 28 2015

Validity of Arbitration Agreement Nursing home arbitration agreements are among the most unpopular arbitration agreements around.  Last week, Kentucky's Supreme Court issued a lengthy, but fractured, opinion, finding three arbitration agreements were never validly formed because the signing parties did not have authority to give up the decedent's...


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California Upholds Controversial Arbitration Clause Within Consumer Contract

By Liz Kramer | August 4 2015

Class Arbitration, Validity of Arbitration Agreement California is changing its tune.  Although previously known for decisions that flouted federal arbitration law, its decision yesterday in Sanchez shows the current California Supreme Court will abide by SCOTUS's interpretation of the FAA.  After a trial court and intermediate appellate court had ruled that the...


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State Courts Disagree About Incorporating Arbitration Agreements By Reference (Post #200!)

By Liz Kramer | July 22 2015

Validity of Arbitration Agreement One way to challenge the very existence of an agreement to arbitrate is to say that the parties' contract said nothing about arbitration and did not validly incorporate any other document calling for arbitration.  Oklahoma and Alabama have recently come out at opposite ends of the spectrum in terms of what kind of...



Should You Cut The Delegation Clause From Your Arbitration Agreement?

By Liz Kramer | July 15 2015

Validity of Arbitration Agreement A recent report showed that less than half of arbitration agreements in the consumer financial arena include delegation clauses in their arbitration agreements.  Two recent decisions from state high courts suggest that is a wise decision because courts do not like to enforce delegation clauses. (Reminder: a...



Arbitration Fireworks: Three Federal Circuits Refuse To Compel Arbitration

By Liz Kramer | July 2 2015

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate Three federal appellate courts recently affirmed lower courts' refusal to compel arbitration.  These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the claims at issue and the defendant cannot have waived its right to arbitrate by engaging in...



Hawaii Finds Arbitration Agreement With “Severe Limitations on Discovery” is Unconscionable

By Liz Kramer | June 19 2015

Validity of Arbitration Agreement Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it prohibited both discovery and punitive damages.  Narayan v. The Ritz-Carlton Dev. Co., Inc., __...



Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute

By Liz Kramer | June 5 2015

Validity of Arbitration Agreement The Supreme Court of Missouri has issued two significant arbitration decisions in recent weeks, showing its willingness to sever any aspects of an arbitration agreement that it finds unconscionable (while enforcing the overall obligation to arbitrate). First, in a contentious decision, the Supreme Court of...


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Eighth Circuit Shows How Difficult It Is To Prove Arbitration Agreement Unconscionable Due To Cost

By Liz Kramer | March 25 2015

Class Arbitration, Validity of Arbitration Agreement Almost two years ago in American Express Co. v. Italian Colors, SCOTUS significantly narrowed, but did not overrule, the "effective vindication" doctrine, which allows plaintiffs to invalidate an arbitration agreement if it precludes them from effectively vindicating their federal statutory rights.  A decision today...