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

Expert’s Trick (changed damage calculation) Does Not Entitle Arbitration Loser to a Treat (a/k/a vacatur)

By Liz Kramer | October 30 2012

Appealing Arbitration Decisions, Scope of Arbitration Agreement The Fifth Circuit recently refused to vacate an arbitration award, despite the loser's arguments that: the arbitrators decided claims outside the scope of the arbitration agreement; and the winner's expert used incorrect damage numbers in his testimony. Morgan Keegan & Co., Inc. v. Garrett, 2012 WL 5209985...

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An ArbitrationNation Roadmap: Document subpoenas to third parties

By Liz Kramer | October 24 2012

Arbitration Rules/Procedures, ArbitrationNation Roadmaps (primers) This post is dedicated to a perennial favorite topic: subpoenas for documents in arbitration.  Why this topic and not something hot off the presses?  Because SCOTUS has not yet accepted or denied the cert petition in Sutter, and no cases have come out recently that meet my high standards for discussion on this blog...

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How Low Can You Go? Shortening the Statute of Limitations in Arbitration Agreements

By Liz Kramer | October 10 2012

Arbitration Rules/Procedures, Validity of Arbitration Agreement I see more and more arbitration agreements that contain their own limitations period (the timeline for bringing a dispute in arbitration).  Are all of those necessarily enforceable?  No.  In Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586 (1947), the Supreme Court held that contracts...

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Eighth Circuit Rules Investors Are Not “Customer” Of Managing Broker-Dealer Under FINRA, So Arbitration Not Required

By Liz Kramer | October 3 2012

Scope of Arbitration Agreement, Validity of Arbitration Agreement In an opinion that runs less than three pages, the Eighth Circuit ruled that a managing broker-dealer is not obligated under the FINRA rules to arbitrate with a group of investors who purchased securities from another party.  Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, __ F.3d. __, 2012 WL 4477433 (8th...

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Arbitration Award Can Be Vacated If It Directs Party To Perform Illegal Act

By Liz Kramer | September 27 2012

Appealing Arbitration Decisions In a new decision from the First Circuit, which refuses to make any definitive pronouncements about the law on vacating arbitration awards, the court said it assumes "with some confidence" that if an arbitration award directed a party to violate an administrative agency rule, it could be vacated on that basis. In...

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Incorporation of Collective Bargaining Agreement on Routine Form Insufficient to Create Arbitration Agreement

By Liz Kramer | September 17 2012

Validity of Arbitration Agreement This is unheard of!  There were two circuit court decisions finding no binding agreement to arbitrate in a single week.  (The first is here.)  In this new decision from the Third Circuit, an employer's submission of forms to a union fund along with fringe benefits is held insufficient to compel that employer to...

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Terms E-mailed to Internet Customer After Purchase Are Insufficient To Create Binding Agreement to Arbitrate

By Liz Kramer | September 12 2012

Validity of Arbitration Agreement In a fascinating decision, the Second Circuit has ruled that an internet merchant cannot compel arbitration with a consumer, when it only emailed the consumer the arbitration agreement after the consumer agreed to the purchase, without any requirement that the consumer affirmatively assent to the term. In Schnabel...

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Individual arbitration is plaintiff’s “only remedy, illusory or not” — Third Circuit

By Liz Kramer | August 30 2012

Class Arbitration, Validity of Arbitration Agreement The earthquake that was the Concepcion decision (in April of 2011) is still sending aftershocks throughout the judicial system.  In last week's ruling, the Third Circuit compelled individual arbitration in Homa v. American Express Co., 2012 WL 3594231(3d Cir. Aug. 22, 2012), a case in which the parties have been...

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Catch 22 for Parties Seeking to Vacate Arbitration Award for Bias

By Liz Kramer | August 24 2012

Appealing Arbitration Decisions The Fifth Circuit has issued a harsh reminder that in order to preserve issues of arbitrator bias for appeal, the bias must have been raised before the arbitration award was issued. In Dealer Computer Servs. v. Michael Motor Co., 2012 WL 3317809 (5th Cir. Aug. 14, 2012), one party (DCS) received a unanimous and...

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Eleventh Circuit Finds FAA Preempts Nascent Florida Law

By Liz Kramer | August 21 2012

Class Arbitration, Validity of Arbitration Agreement The Eleventh Circuit has decided to proactively preempt Florida law, before it could get in the way of the FAA by favoring class arbitrations (despite contract language precluding them). In Pendergast v. Sprint Nextel Corp., __ F.3d. __, 2012 WL 3553466 (11th Cir. Aug. 20, 2012), a wireless customer wanted to...

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