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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A lot of money in piles of coins

Fifth Circuit Finds Federal Jurisdiction Over $10,000 Arbitration Award

By Liz Kramer | April 14 2016

Appealing Arbitration Decisions The Fifth Circuit recently addressed a hard question: what should the court consider when determining the amount in controversy for purposes of federal jurisdiction over an arbitration award?  The court decided to rely on the amount originally sought by the claimant in the demand for arbitration.  Pershing, LLC v....

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Home Construction

Fourth Circuit Finds Availability Of Class Arbitration Is Question For Courts, Not Arbitrators

By Liz Kramer | March 30 2016

Class Arbitration Joining the Sixth and Third Circuit Courts of Appeals, the Fourth Circuit this week held that "whether an arbitration clause permits class arbitration is a gateway question of arbitrability for the court."  Dell Web Communities, Inc. v. Carlson, 2016 WL 1178829 (4th Cir. Mar. 28, 2016). At issue was whether...

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outline map of us state of california on blackboard

Exhibit C For The Case That California Is No Longer Anti-Arbitration

By Liz Kramer | March 30 2016

Validity of Arbitration Agreement The Supreme Court of California this week enforced the arbitration agreement between an employee and employer.  Yes, you read that right.  While reputed to be reliably anti-arbitration, California's highest court continues to provide evidence that it is tired of being reversed by SCOTUS * and is ready to follow...

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Walker

In 3 Recent Decisions, Supreme Court of Arkansas Deeply Divided on Arbitration

By Liz Kramer | March 24 2016

Validity of Arbitration Agreement The Supreme Court of Arkansas has issued three opinions within the span of four weeks, all on the topic of whether defendants can compel arbitration. Each of the opinions came with a vigorous dissent.  The cases offer an interesting look at a state high court that appears to be struggling to deal with FAA case law...

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Coffee cappuccino with coffee beans

Ninth Circuit Refuses To Enforce Arbitration Clause In Sham Franchise Agreement

By Liz Kramer | March 16 2016

Validity of Arbitration Agreement A short new opinion from the Ninth Circuit may run counter to long-standing Supreme Court precedent. In Casa Del Caffe Vergnano v. Italflavors, 2016 WL 1016779 (9th Cir. Mar. 15, 2016), the court refused to enforce an arbitration agreement in a contract that the parties admitted signing, because the parties...

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Lion

Montana Finds Arbitration Agreement Unconscionable For Lack of Mutuality

By Liz Kramer | March 11 2016

Validity of Arbitration Agreement March comes in like a lion, right?  Well, that's not true with respect to the weather here in Minneapolis.  But it may be true with respect to arbitration decisions from around the country.  This post focuses on two recent decisions from state high courts that refuse to compel arbitration. In Global Client...

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Map of West Virginia

SCOTUS Vacates Second Arbitration Case This Term

By Liz Kramer | March 1 2016

Appealing Arbitration Decisions, Validity of Arbitration Agreement, Year In Review Showing it will soldier on without Justice Scalia, the Supreme Court granted cert, vacated, and remanded an arbitration decision from West Virginia yesterday.  Because this is the exact same treatment the Court gave a case from Hawaii's highest court in January (and the same treatment I predicted, ahem), it...

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scalia

Scalia Sizzled on Arbitration

By Liz Kramer | February 22 2016

Year In Review Justice Scalia wrote some blockbuster decisions about arbitration, enforcing arbitration agreements regardless of their real-world impact, and making a potentially dry topic exciting and contentious.  Readers of his opinions knew from the first few paragraphs of the analysis how the case was coming out.  If he was...

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FINAL SUMMATION

Three Appellate Courts Remand for Trial on Existence of Agreement to Arbitrate

By Liz Kramer | February 12 2016

Validity of Arbitration Agreement Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard.  However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated -- like competing evidence about whether the parties ever formed an arbitration agreement...

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Rugged winter scenery in the Badlands National Park of South Dakota.

Fourth Circuit Holds Arbitration Agreement May Not Waive All Federal Statutory Rights

By Liz Kramer | February 4 2016

Class Arbitration, Validity of Arbitration Agreement This week, the Fourth Circuit found an arbitration agreement invalid because it waived all federal and state laws.  Although two other federal circuit courts had already found the same company's arbitration agreement unenforceable because it called for an impossible arbitration process, the Fourth Circuit found it...

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