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 Posts
Industrial power plant with smokestack

Court Vacates $125M Award Due To Arbitrator’s Misleading Disclosures

By Liz Kramer | May 30 2014

Appealing Arbitration Decisions Today we take a close look at that rare creature: an opinion finding sufficient basis under the FAA to vacate an arbitration award. In Tenaska Energy Inc. v. Ponderosa Pine Energy, LLC, __S.W.3d __, 2014 WL 2139215 (Tex. May 23, 2014), the Supreme Court of Texas found an arbitrator had shown "evident partiality" due...

READ MORE

Marijuana

Labor Arbitrator Authorized to Void Agreement Based on Mutual Mistake

By Liz Kramer | May 15 2014

Appealing Arbitration Decisions This week the Eighth Circuit confronted an interesting question: if a union member believed he failed a drug test, and therefore agreed his employer could terminate him if he tested positive again, can the arbitrator invalidate that agreement if the union member never actually failed the drug test? The appellate...

READ MORE

MedicalDevice

Two Federal Circuits Find Health Insurance Claims Outside Scope of Arbitration Clauses

By Liz Kramer | May 9 2014

Scope of Arbitration Agreement, Uncategorized Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don't usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. ...

READ MORE

Fischietto Rosso / Red Whistle

Dodd-Frank Only Precludes Arbitration of Whistleblower Actions

By Liz Kramer | May 8 2014

Validity of Arbitration Agreement The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements betwen publicly-traded employers and their employees.  Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir. May 5, 2014).  Instead, "where the plaintiff is not pursuing Dodd-Frank whistleblower...

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

SpringFlowers

A Motion to Compel Arbitration “Answers” a Complaint

By Liz Kramer | April 25 2014

Arbitration Rules/Procedures, ArbitrationNation Roadmaps (primers) I field a lot of good procedural questions about how arbitration pleadings should be styled. Some of them are answered within the text of the FAA, but many of them leave clerks of court and practitioners scratching their heads and getting creative. I will address one of those common questions today: is a motion to...

READ MORE

Image placer pearls in a shell on a white background.

Three Lessons on Appealing from Arbitrations

By Liz Kramer | April 17 2014

Appealing Arbitration Decisions, Arbitration Rules/Procedures Three decisions came out recently that offer guidance on appealing from arbitration awards.  Here are three pearls of arbitration appeal wisdom, one from each case: 1.  If you want to appeal from an arbitration, you must have a record.  Sounds basic, right?  But many parties, either due to confidence they will...

READ MORE

Old door in Riga

Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability

By Liz Kramer | April 10 2014

Class Arbitration, Validity of Arbitration Agreement In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin to summary judgment, but the FAA states in Section Four: "If the making of the arbitration...

READ MORE

Silver box with survival items isolated on white

Arbitration Clauses Survive Their Contracts 99% Of The Time

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it?  I usually say yes, and thankfully the Sixth Circuit backed me up. In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a...

READ MORE

clothing store

Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement In the past year, if I wrote about "FLSA" and "arbitration" in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act.  Today, however, is different.  The Eleventh Circuit last week...

READ MORE