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 Waiver of Right to Arbitrate Posts
Eight in Flowers

Eight [Months] Is Enough — To Waive Your Arbitration Rights

By Liz Kramer | May 11 2016

Waiver of Right to Arbitrate Today's post is brought to you by the number 8.  The 8th Circuit Court of Appeals issued a new opinion yesterday finding that a defendant who litigated in court for 8 months waived its right to arbitrate (aka, ARBITR8) plaintiff's employment claims.  [That could be my vanity plate!!] Messina v. North Central...

READ MORE

Snowstorm 063

January Arbitration Update: Effective Vindication, Class Arbitration, and FAA Preemption

By Liz Kramer | January 29 2016

Appealing Arbitration Decisions, Arbitration Rules/Procedures, Class Arbitration, Waiver of Right to Arbitrate Lots of interesting arbitration law has been made already in 2016, so here is a roundup from the first four weeks of the year. As a teaser, courts have breathed life into the effective vindication doctrine, found arbitrators cannot determine the availability of class actions, and found state laws not preempted. ...

READ MORE

winter trees on snow white background

3 Year-End Arbitration Lessons From Appellate Courts

By Liz Kramer | December 21 2015

Appealing Arbitration Decisions, Litigation vs. Arbitration, Waiver of Right to Arbitrate Before I can sum up 2015 in arbitration (next post!), I need to report on some new cases coming out of the federal and state appellate courts in recent weeks.  Two are just good reminders of basic arbitration law, but the third addresses an interesting question of double recovery. Our first "reminder" case comes...

READ MORE

FlatScreenTV

Filing Claim In Court Is Not Enough To Waive Arbitration Right

By Liz Kramer | September 18 2015

Waiver of Right to Arbitrate The issue in analyzing whether a party waived its right to arbitrate is usually whether the defendant waited too long to assert the arbitration obligation.  But, this week the Second Circuit had the opportunity to address whether a plaintiff waives its right to arbitrate by the simple fact of bringing a case in...

READ MORE

Fireworks2015

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...

READ MORE

bean counter accounting banking concept

6th Circuit Holds that Accountants Conducting Financial Arbitration Can Also Make Legal Determinations

By Liz Kramer | April 8 2015

Scope of Arbitration Agreement, Waiver of Right to Arbitrate A new case from the Sixth Circuit addresses whether accountants who are resolving a dispute about payments made under an agreement can also make legal determinations about the same agreement. In a 2-1 decision, the Sixth Circuit held that the scope of the dispute clause is broad enough to allow the accountants...

READ MORE

Depositphotos_13960861_xs

First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months

By Liz Kramer | December 11 2014

Uncategorized, Waiver of Right to Arbitrate We haven't had a good waiver case in a while.  The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either).  It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court in the first place, but by...

READ MORE

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...

READ MORE

Action Shot of Soccer Goalie

Appellate Courts Saving Arbitration Agreements Right and Left

By Liz Kramer | July 9 2014

Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration.  The courts seem to be saying to defendants with arbitration agreements: don't worry if you lose in the trial court, we will be your Tim Howard and save you from the gaping jaws...

READ MORE

Turtles

Third Circuit Finds Two Months of Litigation Sufficient to Waive Right to Arbitrate

By Liz Kramer | May 2 2014

Waiver of Right to Arbitrate In a decision this week, the Third Circuit found two related parties had waived their right to arbitrate claims.  One was no suprise -- it had vigorously litigated the dispute for eleven months.  But the second may have been simply guilty by association, as it had only litigated for two months.  Supermedia v....

READ MORE