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

The Missouri Compromise: Precedent Finding Class Arbitration Waivers Unconscionable Is Vacated

By Liz Kramer | March 29 2012

Class Arbitration, Validity of Arbitration Agreement The Missouri Supreme Court just acknowledged that its 2010 decision, finding a class arbitration waiver was unenforceable under state law, is preempted by the FAA, pursuant to the rationale of Concepcion.  In Robinson v. Title Lenders, Inc., __ S.W.3d __, 2012 724669 (Mo. Mar. 6, 2012) and Brewer v. Mo. Title...

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Concepcion’s Continuing Domino Effect: Case Law in California, Washington, and Pennsylvania Preempted By FAA

By Liz Kramer | March 22 2012

Class Arbitration, Validity of Arbitration Agreement Three state law decisions relating to arbitration were toppled recently, based on application of the U.S. Supreme Court's preemption decision in Concepcion.  In Kilgore v. Keybank, __ F.3d __, 2012 WL 718344 (9th Cir. Mar. 7, 2012), the Ninth Circuit held that California case law, which precluded arbitration of...

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A Hypothetical Illustrating The Thin Line Between Formation Challenges and Validity Challenges

By Liz Kramer | March 19 2012

Validity of Arbitration Agreement Building off last post's discussion of the Solymar case, and the surprisingly fuzzy line between challenges to the formation of contracts containing arbitration provisions and challenges to the validity of those contracts, here is a hypothetical for you to consider.  (Why a hypothetical?  Because it is spring...

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11th Circuit Finds Not All Formation Challenges Are Created Equal (Some Go Straight To Arbitrator)

By Liz Kramer | March 8 2012

Litigation vs. Arbitration, Validity of Arbitration Agreement The severability doctrine of federal arbitration law tells litigants that unless they can specifically challenge the validity of the arbitration provisions of the contract, as opposed to challenging the entire contract, the courts will not address the merits of the challenge.  (See entire line of increasingly harsh...

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“Manifest Disregard Of The Law” Has Circuit Courts in Disarray

By Liz Kramer | March 4 2012

Appealing Arbitration Decisions The Fourth Circuit recently affirmed that it will consider “manifest disregard of the law” as a separate basis for attacking an arbitration award, in addition to the four bases set forth in Section 10 of the Federal Arbitration Act.  Wachovia Secs., LLC v. Brand, __ F.3d ___, 2012 WL 507022, at *8 (4th Cir. Feb...

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West Virginia’s Arbitration Ruling Could Not Stay Under SCOTUS’ FAA Preemption Radar

By Liz Kramer | February 21 2012

Validity of Arbitration Agreement The U.S. Supreme Court today vacated the West Virginia Supreme Court of Appeals' decision from last June, holding that pre-dispute arbitration clauses in nursing home contracts will not be enforced in that state.  The content of the decision is not surprising, as it relies on notions of federal preemption and...

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Saint Vacatur’s Day: Feb. 3

By Liz Kramer | February 16 2012

Appealing Arbitration Decisions The Sixth and Second Circuits addressed whether to vacate an arbitrator’s award recently.  The Sixth Circuit vacated the award of an arbitrator who “exceeded his powers,” while the Second Circuit refused to vacate for “evident partiality.”   Based on the parties’ agreement, the Sixth Circuit...

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Rule-Making Comes To The Rescue of Class Arbitration

By Liz Kramer | February 9 2012

Arbitration Rules/Procedures, Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A reasonable person may have thought that the Supreme Court effectively killed off class arbitrations with its decisions in Stolt-Nielsen and Concepcion, but at least two government agencies have recently made decisions that ensure financial consumers and employees can bring classwide claims in some...

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Fifth Circuit Finds Arbitration Agreement Illusory

By Liz Kramer | February 7 2012

Validity of Arbitration Agreement Applying Texas law, the Fifth Circuit recently found that an employer cannot compel arbitration under an agreement that gives the employer the right to unilaterally change the terms of the agreement.  Carey v. 24 Hour Fitness, USA, Inc., __ F.3d __, 2012 WL 205851 (5th Cir. Jan. 25, 2012).  The employee in the...

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Amex, The Threequel: Second Circuit Keeps Alive Notion That Prohibitive Expense Is Basis To Invalidate Arbitration Agreements

By Liz Kramer | February 3 2012

Validity of Arbitration Agreement In the latest serve in a four-year ping-pong match between it and the Supreme Court, the Second Circuit has re-re-affirmed its holding that American Express may not compel arbitration of antitrust claims by a class of national merchants.  In Re Am. Express Merchants’ Litig., ___ F.3d ___, 2012 WL 284518 (2d Cir....

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