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

SCOTUS Hearing Arbitration Case Wednesday; Spotlight On State Cases

By Liz Kramer | February 21 2017

Appealing Arbitration Decisions, Validity of Arbitration Agreement While the Supreme Court has put off hearing a more contentious arbitration case until the fall (presumably in hopes that it will have nine justices by then), tomorrow it will hear the nursing home arbitration case from Kentucky.  I look forward to listening to the questions and trying to figure out why the Justices...

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3 Class Actions, 3 Motions to Compel Arbitration, 1 Class Action Survives

By Liz Kramer | February 10 2017

Class Arbitration, Validity of Arbitration Agreement The Ninth, Sixth, and Third Circuits all recently issued decisions about whether putative class or collective actions could proceed despite the existence of arbitration clauses.  In two of those decisions, the courts found the arbitration agreements did not allow for class arbitration and therefore dismissed the...

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Two States Buck FAA Preemption, While Alabama Stays the Course

By Liz Kramer | February 3 2017

Appealing Arbitration Decisions, Class Arbitration, Validity of Arbitration Agreement Three state supreme courts tackled arbitration law in recent weeks: Alabama, North Carolina, and Rhode Island.  Rhode Island reversed a construction arbitration award because it disagreed with the arbitrator's analysis.  North Carolina found that an arbitration agreement in a doctor-patient setting was...

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10th Circuit Resolves One Arbitrability Circuit Split, But Creates Another

By Liz Kramer | January 26 2017

Scope of Arbitration Agreement, Validity of Arbitration Agreement If you are a party that wants courts to rigidly enforce delegation clauses – sending questions about even the validity of the agreement to arbitration – then you will appreciate a new decision from the Tenth Circuit. In Belnap v. Iasis Healthcare, __ F.3d __, 2017 WL 56277 (10th Cir. Jan. 5, 2017), the court...

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Kardashians Kept Out of Arbitration (and other recent arbitration news)

By Liz Kramer | January 20 2017

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate Just three weeks into the year and already my pile of arbitration cases is a skyscraper! So, I will cover a lot of ground in this update. First, the headline. Kimberly, Kourtney, and Khloe Kardashian moved to compel arbitration, although they were not signatories to the arbitration agreement.  Kroma Makeup EU v....

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Nebraska Real Estate And Nebraska Borrowers, But Federal Arbitration Act Applies

By Liz Kramer | December 17 2016

Validity of Arbitration Agreement In a fight over whether a single lending transaction involved interstate commerce, the Supreme Court of Nebraska found the Federal Arbitration Act (FAA) applied and preempted its state arbitration act.  Wilczewski v. Charter West Nat'l Bank, __ N.W.2d__ (Neb. Dec. 9, 2016). The case involved buyers who purchased a...

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Fuzzy Math? 6 Differing Arbitration Agreements = 0 Arbitration Agreement

By Liz Kramer | December 4 2016

Validity of Arbitration Agreement If you ever wanted an "Exhibit A" for how drafting arbitration agreement(s) could go very, very wrong, the Tenth Circuit has just provided it. In Ragab v. Howard, __ F.3d __, 2016 WL 6832870 (10th Nov. 21, 2016), a majority of the panel concluded that because the parties had six differing arbitration agreements, they...

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SCOTUS Accepts Review of Kentucky Nursing Home Arbitration Case

By Liz Kramer | October 30 2016

Validity of Arbitration Agreement On October 28, the Supreme Court granted a cert petition in a case in which the Kentucky Supreme Court refused to enforce arbitration agreements in nursing home agreements.  (Kentucky recently topped my list of states hostile to arbitration precisely because of the language in the decision that will be...

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Louisiana Rejects Arbitration Clause In Contract Of Adhesion

By Liz Kramer | October 23 2016

Validity of Arbitration Agreement The Supreme Court of Louisiana refuses to send customers who were injured while playing at Sky Zone to arbitration, finding that the arbitration clause "is adhesionary and therefore unenforceable".  Duhon v. Activelaf, LLC, __ So. 3d __, 2016 WL 6123820 (La. Oct. 19 2016); Alicea v. Activelaf, LLC, __ So. 3d __, 2016...

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Administration Joins Courts In Prohibiting Arbitration In Nursing Home Admissions

By Liz Kramer | October 16 2016

Litigation vs. Arbitration, Validity of Arbitration Agreement Within the U.S. Government, the CFPB has gotten most of the attention for trying to regulate consumer arbitration.  But this month, the Centers for Medicare & Medicaid Services (CMS) are bumping the CFPB out of the arbitration regulation spotlight.  In particular, the CMS issued a rule that will prohibit the use...

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