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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Marshal Service for Arbitration Awards, Relic or Requirement?

By Liz Kramer | July 2 2017

ArbitrationNation Roadmaps (primers) So you’ve got an arbitration award, what next? In other types of civil cases, the Federal Rules of Civil Procedure (Rules) control service, and they have greatly reduced the role of U.S. Marshals in serving parties. See Fed. R. Civ. P. 4(c). But enter the Federal Arbitration Act § 9 and § 12 (FAA). When a...

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New Administration Dismantles More Of Obama Arbitration Regulations

By Liz Kramer | June 22 2017

Year In Review It was only a few weeks ago that this blog covered the reversal of the CMS regulation on arbitration in nursing homes.  Now, the Trump Administration has altered course on two other issues of arbitration policy. First, the Department of Education has "delayed until further notice" its ban on pre-dispute...

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Sixth Circuit Adds to a Growing Circuit Split; SCOTUS to Decide Scope of Employees’ Arbitration Rights

By Liz Kramer | June 14 2017

Class Arbitration, Year In Review In National Labor Relations Board v. Alternative Entertainment, Inc., No. 16-1385, 2017 WL 2297620 (6th Cir. May 26, 2017), the Sixth Circuit joined the Seventh and Ninth Circuits in upholding the NLRB's decision that barring an employee from pursuing class action or collective claims violates the NLRA. Already lined...

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Trump Administration Gives First Peek Into Its Arbitration Strategy

By Liz Kramer | June 7 2017

Year In Review In a first indication of the Trump Administration's stance on consumer arbitration, the Centers for Medicare & Medicaid Services (CMS) this week issued a new proposed rule that rolls back the Obama Administration's regulation, which precluded pre-dispute arbitration agreements in nursing homes.  (Too many...

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First Circuit Finds Class of Independent Truckers Excluded From Federal Arbitration Act

By Liz Kramer | May 29 2017

Class Arbitration, Validity of Arbitration Agreement The Federal Arbitration Act has been in effect for nearly 100 years (92, to be precise).  Nevertheless, the First Circuit found two issues of first impression to address this month.  In Oliveira v. New Prime, Inc., 2017 WL 1963461 (1st Cir. May 12, 2017), the court refused to compel arbitration of a class action...

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SCOTUS Reverses KY Nursing Home Arbitration Decision; Refuses To Prioritize Right To Jury Trial

By Liz Kramer | May 15 2017

Validity of Arbitration Agreement, Year In Review Just as I predicted, SCOTUS reversed the Kentucky Supreme Court's decision in Kindred this morning.  The interesting piece, though, is that the seven member majority went out of its way to cut off some of the "on trend" methods that state courts have been using to avoid arbitration...

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Maryland’s Highest Court Finds Small Claims Court Action Waived Right To Arbitrate

By Liz Kramer | May 8 2017

Class Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate It is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause?  The court's answer was yes,...

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Fifth Circuit Dances On Head of Arbitration Pin

By Liz Kramer | April 29 2017

Validity of Arbitration Agreement Demonstrating just how difficult it can be to separate questions about the "formation" of an arbitration agreement from the "validity" of that agreement, the Fifth Circuit found this month that when an argument was applied to two of the parties' three agreements, it related to their formation, but when the same...

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8th Circuit Finds ADEA Does Not Preclude Arbitration

By Liz Kramer | April 28 2017

Class Arbitration, Validity of Arbitration Agreement One of the few "get out of arbitration free" cards that SCOTUS offers litigants is this: find another federal statute that clearly entitles plaintiff(s) to a court trial. In a recent 8th Circuit case, that court carefully considered, and then rejected, the argument that the Age Discrimination in Employment Act (ADEA)...

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California Invalidates Waiver of Public Injunctive Relief In Consumer Arbitration Clause

By Liz Kramer | April 8 2017

Class Arbitration, Validity of Arbitration Agreement Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement.  (Btw, here's a nice SCOTUSblog piece on Gorsuch's arbitration decisions.)  In...

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