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

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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Proving A Waiver of Arbitration Rights Is Now Easier In Construction Cases (8th Cir.)

By Liz Kramer | August 26 2011

Litigation vs. Arbitration, Waiver of Right to Arbitrate A party with an arbitration agreement can waive its right to arbitrate by acting inconsistently with that right, usually by "invoking the litigation machinery" before demanding arbitration.  However, the federal circuits are split over whether a party asserting a waiver of arbitration must also show it was...

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The Arbitrator Finds The Contract Invalid. Now What?

By Liz Kramer | August 19 2011

Appealing Arbitration Decisions, Validity of Arbitration Agreement What is an arbitrator to do after concluding that the parties' entire agreement -- the same agreement that authorized the arbitration proceeding -- is invalid?  That is the question that the California Court of Appeal addressed this week.  The California court ruled that the arbitrator was authorized to reach a...

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Are Consumer Health Care Disputes Exempted From Arbitration?

By Liz Kramer | August 11 2011

Validity of Arbitration Agreement West Virginia’s highest court acknowledged just weeks ago that a state statute, which nullified any nursing home resident’s waiver of his or her right to a court action, is preempted by the FAA.  Brown v. Genesis Healthcare Corp., et al, __ S.E.2d ___, 2011 WL 2611327 (W. Va. June 29, 2011).  More interesting,...

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