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
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The Preemption Club

By Liz Kramer | March 3 2014

Class Arbitration, Uncategorized, Validity of Arbitration Agreement, Waiver of Right to Arbitrate California is the Judd Nelson of The Preemption Club.  (Or the John Bender, if you prefer using character names.)  The Supreme Court has sent the California courts to preemption detention for ignoring the Federal Arbitration Act in blockbuster, groundbreaking cases (see Concepcion).  But California cannot help...

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Second and Ninth Circuits Allow Employers To Preclude Collective FLSA Claims, Rejecting NLRB Ruling

By Liz Kramer | September 4 2013

Class Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In January of this year, the Eighth Circuit was the first federal appellate court to refuse to adopt the National Labor Relations Board's ruling on class action waivers in employment contracts.  (The previous year, in D.R. Horton, the NLRB declared it a violation of federal labor law for employers to require...

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The Next Frontier of Arbitration Litigation: Lessons From State Courts

By Liz Kramer | August 19 2013

Appealing Arbitration Decisions, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate, Year In Review After reading more than 40 decisions about arbitration from state high courts, issued just in the past eight months, I have two bits of wisdom to share.  First, that is not the best way to spend your summer vacation, even for a devoted arbitration nerd.  And second, there are arbitration issues percolating in...

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Prius Owners Put the Brakes On Arbitration With Non-Signatory Toyota

By Liz Kramer | February 1 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate The Ninth Circuit ruled this week that a class of car owners could pursue their court claims against the manufacturer, Toyota, for product defects and false advertising, despite the existence of an arbitration agreement in each of the owners' purchase agreements with the car dealerships.  The court held that Toyota...

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Abstention Trumps Arbitration In Tenth Circuit

By Liz Kramer | January 16 2013

Litigation vs. Arbitration, Waiver of Right to Arbitrate The Tenth Circuit this week refused to consider a plaintiff's substantive arguments about its right to arbitrate because it found abstention was appropriate under the Colorado River doctrine.  D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., __ F.3d __, 2013 WL 150221 (10th Cir. Jan. 15, 2013).  Though the...

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Defendant Did Not “Waive” Goodbye to Arbitration Despite Litigating For 6 Months

By Liz Kramer | December 5 2012

Class Arbitration, Waiver of Right to Arbitrate In contrast to recent decisions from other circuit courts, the Fourth Circuit found a defendant did not waive its right to arbitrate, despite litigating for more than 6 months and conducting discovery.  Rota-McLarty v. Santander Consumer USA, Inc., __ F.3d __, 2012 WL 5936033 (4th Cir. Nov. 28, 2012). In this...

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turkey

Another Turkey Waives Its Right to Arbitration

By Liz Kramer | November 20 2012

Appealing Arbitration Decisions, Waiver of Right to Arbitrate In answer to the proverbial question "how much litigation waives the right to arbitrate?," the Third Circuit has responded that ten months does the trick, if the party seeking arbitration has engaged in significant motion practice, regardless of whether any discovery was exchanged. In re Pharmacy Benefit Managers...

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Don’t Game The System: “A Motion To Compel Arbitration Will Almost Never Be Futile”

By Liz Kramer | November 6 2012

Appealing Arbitration Decisions, Class Arbitration, Waiver of Right to Arbitrate After an arbitration about-face by the defendant in a class action, the Eleventh Circuit ruled that the defendant had waived its right to compel arbitration by: participating in litigation for two years and affirmatively declining to enforce its arbitration agreement with the plaintiffs until after SCOTUS issued...

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Are Residential Real Estate Contracts Outside The Bounds of the Federal Arbitration Act?

By Liz Kramer | July 25 2012

Validity of Arbitration Agreement, Waiver of Right to Arbitrate The Supreme Court of South Carolina just ruled that contracts for the sale of residential property are not interstate commerce, and therefore are outside the reach of the Federal Arbitration Act.  Bradley v. Brentwood Homes, Inc., __ S.E.2d __, 2012 WL 2847616 (S.C. July 11, 2012).  That is a surprising result in my...

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Parties Can Waive Arbitration, Despite A “No Waiver” Clause in Contract

By Liz Kramer | May 31 2012

Waiver of Right to Arbitrate The Sixth Circuit easily affirmed a district court's finding that the defendant had waived its right to arbitration by participating in litigation for eight months.  Johnson Assoc. Corp. v. HL Operating Corp., __ F.3d __, 2012 WL 1861675 (6th Cir. May 23, 2012).  Plaintiffs had filed suit in late December of 2009...

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