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

“I’m Good Enough, I’m Smart Enough, And Dog-gone It” I Don’t Like Mandatory Arbitration

By Liz Kramer | October 18 2011

Litigation vs. Arbitration, Uncategorized, Validity of Arbitration Agreement Minnesota Senator Al Franken, among others, responded to the Supreme Court’s Concepcion decision  by introducing a bill called the Arbitration Fairness Act of 2011 (S.987, also in the House as H.R. 1873) last May, which would legislatively nullify arbitration provisions in various types of agreements.  The Senate...

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Federal Judge Disqualifies Lawyers Based On Misconduct In Arbitration

By Liz Kramer | October 12 2011

Appealing Arbitration Decisions, Arbitration Rules/Procedures The lawyers who sought to disqualify their opposing counsel during a pending arbitration must have been giddy when they drew Judge Shira Scheindlin of the Southern District of New York as their judge.  Judge Scheindlin, who is famously tough on unscrupulous lawyers, did not disappoint.  She went out of her way...

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Precluding Arbitration in Legislation: Supreme Court Preview

By Liz Kramer | October 7 2011

Litigation vs. Arbitration, Validity of Arbitration Agreement Since the last post dealt with legislative overrides of arbitration agreements, this one will expand on that theme with a preview of an upcoming Supreme Court case.  In CompuCredit Corp. v. Greenwood, to be heard on October 11, the Supreme Court will decide whether Congress intended to prohibit arbitration of...

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Circuit Split On Whether Federal Lemon Law Claims Are Arbitable

By Liz Kramer | October 3 2011

Validity of Arbitration Agreement The Federal Trade Commission has long construed the Magnuson-Moss Warranty Act, a.k.a the “federal lemon law,” as barring binding arbitration provisions that consumers are asked to sign upon purchasing a product.  In fact, the FTC issued a rule that prohibits courts from enforcing binding arbitration clauses in...

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Employee-on-Employee Violence Not Within Scope of Arbitration Agreement

By Liz Kramer | September 29 2011

Litigation vs. Arbitration, Scope of Arbitration Agreement Last week the Eleventh Circuit interpreted the scope of the arbitration agreement within a plaintiff's employment contract to exclude civil claims stemming from her sexual assault by fellow employees.  In doing so, the court may have signaled a discomfort with sending civil claims based on criminal conduct to...

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Is A Specified Arbitral Provider or Rule Set An Essential Term Of The Arbitration Agreement?

By Liz Kramer | September 23 2011

Arbitration Rules/Procedures, Validity of Arbitration Agreement By Liz Kramer and Patrick Burns (http://www.valuesolveadr.org/patrick.html ), Guest Blogger If an arbitration agreement calls for the dispute to be administered by an ADR provider that will not or cannot accept the case, or calls for the application of non-existent rules, it may not be enforceable.  That issue...

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Reviving Your Right To Arbitrate

By Liz Kramer | September 18 2011

Waiver of Right to Arbitrate The Eleventh Circuit has ruled that the plaintiff's act of amending its complaint may allow a defendant to resurrect its previously-waived right to arbitrate.  "[I]n limited circumstances, fairness dictates that a waiver of arbitration be nullified by the filing of an amended complaint."  Krinsk v. Suntrust...

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Yes, Virginia, There is Injunctive Relief in Court Despite An Arbitration Clause

By Liz Kramer | September 14 2011

Arbitration Rules/Procedures, Litigation vs. Arbitration A recent decision from the Western District of Oklahoma reminds all litigators that you may be able to get preliminary injunctive relief from the courts, despite having a valid arbitration agreement.  Although this seems to fly in the face of the courts’ general arbitration refrain (stolen from M.C. Hammer:...

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Another State Law Bites the Concepcion Dust

By Liz Kramer | September 9 2011

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement In April, the Supreme Court struck down a common law rule in California that declared most consumer arbitration agreements void if they prohibit classwide arbitration of claims, holding that it was preempted by the Federal Arbitration Act.  AT&T Mobility, LLC v. Concepcion, 131S. Ct. 1740 ( 2011).  In the last...

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Has The Parade of Predicted Horribles From Rent-A-Center Come To Pass?

By Liz Kramer | September 1 2011

Validity of Arbitration Agreement Just over a year has passed since the U.S. Supreme Court applied the severability doctrine in Rent-A-Center, West Inc.  v. Jackson, 130 S. Ct. 2772 (2010), in such a way that Justice Stevens and three others dissented, raising the specter of “infinite layers of severability” and a parade of arbitrability...

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