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 →

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Incorporating Arbitration Agreements By Reference: the Key is Reasonable Notice

By Liz Kramer | January 21 2014

Validity of Arbitration Agreement In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause?  The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration...

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What A-Rod Can Teach About A-rbitration

By Liz Kramer | January 14 2014

Appealing Arbitration Decisions, Arbitration Rules/Procedures Arbitration is in the news.  Not just a buried paragraph in the business section, but the front page.   (A three-arbitrator panel issued a 34-page arbitration award finding Major League Baseball was justified in suspending baseball player Alex Rodriguez for 162 games, which A-Rod is now trying to vacate.)  My own...

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CFPB’s Preliminary Report: Financial Consumers Can Only Avoid Arbitration By Using A Credit Union

By Liz Kramer | January 7 2014

Arbitration Rules/Procedures, Litigation vs. Arbitration Say it's twenty degrees below zero outside, and you'd already seen boiling water turn into "snow" immediately upon making contact with the air, what would you do next?  Assuming you were all caught up on your Words With Friends games, you would read the 168-page initial report of the Consumer Finance Protection...

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The Easiest Arbitration Agreement to Avoid May Be the One Between Attorney and Client

By Liz Kramer | December 23 2013

Validity of Arbitration Agreement BY JEFF MASON The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements.  Although the First Circuit found its way around the issue, the Ninth Circuit took it...

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Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds for Vacating Award

By Liz Kramer | December 18 2013

Appealing Arbitration Decisions, Scope of Arbitration Agreement In the Hall Street decision in 2008, SCOTUS held that parties could not contractually enlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section.  This week, the Ninth Circuit held that parties also cannot contractually...

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Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration

By Liz Kramer | December 4 2013

Class Arbitration, Validity of Arbitration Agreement After three federal circuits had already refused to defer to the NLRB's decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB's critical holding: that precluding class arbitrations is a violation of federal labor law.  D.R. Horton, Inc. v. Nat'l Labor Relations Bd., __...

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ArbitrationNation Makes The Blawg 100 Again

By Liz Kramer | November 25 2013

Uncategorized The ABA Journal released its seventh annual list of the top 100 legal blogs in the country and ArbitrationNation is honored to be included for a second year in a row.  ArbitrationNation is the only blawg on the list devoted to arbitration.  (And it looks like one of only two from Minnesota authors...) Now that...

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West Virginia Has A Change Of Heart About Arbitration

By Liz Kramer | November 24 2013

Class Arbitration, Validity of Arbitration Agreement A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country.  There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses.  (Recall its arbitration feud with SCOTUS in 2012?)  But, this...

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Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts

By Liz Kramer | November 8 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a "gateway" issue of arbitrability that defaults to courts.  This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court...

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“Manifest Disregard of the Law” is Alive and Well and Vacating Arbitrations in Fourth Circuit

By Liz Kramer | November 7 2013

Appealing Arbitration Decisions The Federal Arbitration Act sets forth only four bases for vacating arbitration awards.  See 9 U.S.C. § 10 (a).    After SCOTUS's 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four bases are exclusive, de-legitimizing the creative bases that judges had developed...

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