Echoing a holding already issued by four other circuits, the Third Circuit recently found that a defendant does not waive its right to arbitration by continuing to litigate in court, if the reason it failed to move to compel arbitration is that the motion would have been futile. Chassen v. Fidelity Nat’l Fin., Inc.,
Waiver of Right to Arbitrate
Federal Courts Teach Arbitration 101 In Recent Opinions
While state courts have been busy articulating novel interpretations of arbitration law this summer, federal courts seem intent on getting back to basics. In recent weeks, federal appellate courts have reminded parties who has the burden of proving an agreement to arbitrate, what should happen to the case when arbitration gets compelled, how parties waive…
Class Rep Can Opt Out of Arbitration for All (And Other Recent State Court Anomalies)
Continuing last week’s theme of “States Gone Wild,” here are three more oddball summer decisions from state supreme courts. All of them find interesting paths around federal case law (IMHO).
Georgia Says Class Complaint Is Deemed Arbitration Opt Out For All Class Members
In Bickerstaff v. SunTrust Bank, 2016 WL 3693778 (Ga. July 8,…
Eight [Months] Is Enough — To Waive Your Arbitration Rights
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…
January Arbitration Update: Effective Vindication, Class Arbitration, and FAA Preemption
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. More surprisingly, state courts…
3 Year-End Arbitration Lessons From Appellate Courts
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 from…
Filing Claim In Court Is Not Enough To Waive Arbitration Right
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 court.
In…
Arbitration Fireworks: Three Federal Circuits Refuse To Compel Arbitration
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 significant discovery and motion practice.
In…
6th Circuit Holds that Accountants Conducting Financial Arbitration Can Also Make Legal Determinations
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 to resolve contract…
First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months
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…