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

11th Circuit Finds Not All Formation Challenges Are Created Equal (Some Go Straight To Arbitrator)

By Liz Kramer | March 8 2012

Litigation vs. Arbitration, Validity of Arbitration Agreement The severability doctrine of federal arbitration law tells litigants that unless they can specifically challenge the validity of the arbitration provisions of the contract, as opposed to challenging the entire contract, the courts will not address the merits of the challenge.  (See entire line of increasingly harsh...

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West Virginia’s Arbitration Ruling Could Not Stay Under SCOTUS’ FAA Preemption Radar

By Liz Kramer | February 21 2012

Validity of Arbitration Agreement The U.S. Supreme Court today vacated the West Virginia Supreme Court of Appeals' decision from last June, holding that pre-dispute arbitration clauses in nursing home contracts will not be enforced in that state.  The content of the decision is not surprising, as it relies on notions of federal preemption and...

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Rule-Making Comes To The Rescue of Class Arbitration

By Liz Kramer | February 9 2012

Arbitration Rules/Procedures, Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A reasonable person may have thought that the Supreme Court effectively killed off class arbitrations with its decisions in Stolt-Nielsen and Concepcion, but at least two government agencies have recently made decisions that ensure financial consumers and employees can bring classwide claims in some...

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Fifth Circuit Finds Arbitration Agreement Illusory

By Liz Kramer | February 7 2012

Validity of Arbitration Agreement Applying Texas law, the Fifth Circuit recently found that an employer cannot compel arbitration under an agreement that gives the employer the right to unilaterally change the terms of the agreement.  Carey v. 24 Hour Fitness, USA, Inc., __ F.3d __, 2012 WL 205851 (5th Cir. Jan. 25, 2012).  The employee in the...

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Amex, The Threequel: Second Circuit Keeps Alive Notion That Prohibitive Expense Is Basis To Invalidate Arbitration Agreements

By Liz Kramer | February 3 2012

Validity of Arbitration Agreement In the latest serve in a four-year ping-pong match between it and the Supreme Court, the Second Circuit has re-re-affirmed its holding that American Express may not compel arbitration of antitrust claims by a class of national merchants.  In Re Am. Express Merchants’ Litig., ___ F.3d ___, 2012 WL 284518 (2d Cir....

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Third Circuit Says “Bring On De-Funct!”

By Liz Kramer | January 25 2012

Arbitration Rules/Procedures, Validity of Arbitration Agreement In a 2-1 decision, the Third Circuit held last week that the arbitration agreement in a personal computer purchase was valid, despite its mandate of a defunct arbitral forum.  Its decision, Khan v. Dell Inc., ___ F.3d ___, 2012 WL 163899 (3d Cir. Jan. 20, 2012), is in line with the decision of the South Dakota...

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CompuCredit Corp. v. Greenwood: 8-1 SCOTUS Decision Finds Credit Repair Organizations Act Does Not Preclude Arbitration

By Liz Kramer | January 10 2012

Litigation vs. Arbitration, Validity of Arbitration Agreement In a very narrow decision today, the U.S. Supreme Court found that the Credit Repair Organizations Act (CROA) does not preclude the arbitration of consumer suits alleging violations of that Act.  CompuCredit Corp. v. Greenwood, 565 U.S. ___ (2012).  The 8-1 decision was written by (who else?) Justice Scalia, with...

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South Dakota Disagrees with Illinois and Pennsylvania, Finding Choice of Defunct Arbitration Rules is Not “Integral” To Agreement

By Liz Kramer | January 4 2012

Arbitration Rules/Procedures, Validity of Arbitration Agreement Earlier in 2011, courts in both Pennsylvania and Illinois issued decisions finding that when a consumer's arbitration agreement called for the National Arbitration Forum (NAF) to administer the arbitration, but the NAF no longer administered consumer disputes, the arbitration agreements were unenforceable.  Those...

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It’s A Wrap: 2011 in Arbitration Law

By Liz Kramer | December 30 2011

Scope of Arbitration Agreement, Validity of Arbitration Agreement, Year In Review As we pile up the cardboard boxes that held holiday gifts for the recycling truck and select our new year's resolutions for 2012, here are a few reflections on the last twelve months in arbitration law.  I would summarize it as another year where the U.S. Supreme Court was playing whack-a-mole, trying to tamp...

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Severability Squared: Can Invalid Provisions Within an Arbitration Agreement Be Severed?

By Liz Kramer | December 6 2011

Validity of Arbitration Agreement Do you remember the moment when you first encountered the concept of arbitrating arbitrability?  Just the phrase is mind-bending!  It took me a while to wrap my head around the idea that parties could separately agree to arbitrate the question of whether they really had to arbitrate.   Well, here's a similar...

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