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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Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid

By Liz Kramer | November 13 2014

Class Arbitration, Validity of Arbitration Agreement A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble's website was not enforceable.  This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let...

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HawaiiSurfboards

Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair

By Liz Kramer | November 5 2014

Arbitration Rules/Procedures, Validity of Arbitration Agreement The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL 5503393 (Haw. Oct. 31, 2014).  The parties can either jointly agree to a forum, or the court...

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Don’t Sign Your Spouse’s Arbitration Agreement, And Other Lessons From Non-Signatories

By Liz Kramer | October 31 2014

Validity of Arbitration Agreement In three cases in recent months, courts have found that plaintiffs who did not sign an arbitration agreement (non-signatories) are not obligated to arbitrate.  In all three cases, a key issue was that the plaintiff's claims in court did not rely on the contract containing the arbitration clause. In the most...

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Music notes

“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration

By Liz Kramer | October 22 2014

Validity of Arbitration Agreement Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts “harmonize” language from different parts of an agreement or from multiple agreements. The decision from the Eighth...

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Second Federal Circuit Court Refuses To Enforce Arbitration By South Dakota Tribe

By Liz Kramer | October 15 2014

Validity of Arbitration Agreement Using a different analysis, but reaching the same result as a recent decision from the Seventh Circuit, the Eleventh Circuit agreed that a defendant could not compel arbitration of consumer claims before the Cheyenne River Sioux Tribal Nation in South Dakota.  Inetianbor v. CashCall, __ F.3d__, 2014 WL 4922225...

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Running track hurdle

Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid

By Liz Kramer | September 26 2014

Class Arbitration, Validity of Arbitration Agreement Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to Missouri’s recent ruling). Alltel Corp. v. Rosenow, 2014 WL 4656609 (Ark. Sept. 18, 2014)....

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worldinpieces

End Of The World As We Know It (for Employment Arbitration)?

By Liz Kramer | September 20 2014

Validity of Arbitration Agreement Cue the R.E.M folks, because the Supreme Court of Missouri issued a 4-3 opinion recently that appears to upend many employment arbitration agreements in that state.  Baker v. Bristol Care, Inc., __ S.W.3d__, 2014 WL 4086378 (Mo. Aug. 19, 2014).  However, the situation is not as dire as it may seem. The high...

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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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Vegetables, Bulgarian Pepper

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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