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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Arbitration Awards Cannot Be Vacated Just Because Arbitrator Excluded Evidence

By Liz Kramer | August 1 2013

Appealing Arbitration Decisions, Arbitration Rules/Procedures In two decisions this week, courts consider whether arbitration awards can be vacated based on arbitrators' decisions to exclude evidence.  In both cases, the courts affirm an arbitrator's authority to make reasonable evidentiary decisions -- excluding hearsay and denying tardy subpoena requests -- as long as...

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Evidence bag

Court Affirms Arbitrator’s Decision to Preclude Party From Defending Against Claim as Sanction for Fabricating Evidence

By Liz Kramer | July 23 2013

Appealing Arbitration Decisions, Litigation vs. Arbitration In a decision that confirms arbitrators' broad discretion to not only fashion remedies, but also fashion sanctions, the Minnesota Court of Appeals held that an arbitrator did not exceed his power by issuing a severe sanction: denying one party the right to defend against certain claims after finding that party had...

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Eleventh Cir. Applies Sutter to Affirm Class Arbitration; Ninth Cir. Applies Concepcion To Preempt Montana Law

By Liz Kramer | July 17 2013

Appealing Arbitration Decisions, Class Arbitration, Validity of Arbitration Agreement Within weeks of its issuance, SCOTUS's Sutter decision is already making an impact on other cases. Both the Eleventh Circuit and the D.C. Court of Appeals cite Sutter repeatedly in recent decisions that refuse to vacate arbitration awards.  Of course, new decisions are not the only ones that reverberate:...

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GenieLamp

If “Grave Error” Is Not Enough to Vacate An Arbitrator’s Decision, What Is?

By Liz Kramer | July 11 2013

Appealing Arbitration Decisions, ArbitrationNation Roadmaps (primers) The recent Sutter decision drives home repeatedly that a court may not vacate an arbitrator's decision under the FAA just because a judge thinks the arbitrator reached the wrong result.  Justice Kagan said that under Section 10(a)(4) the court cannot second-guess the award, not even in the face of "grave error." ...

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Ground rules

ArbitrationNation Roadmap: When Should You Choose JAMS, AAA or CPR Rules?

By Liz Kramer | June 27 2013

ArbitrationNation Roadmaps (primers) Albert Einstein supposedly once said “you have to learn the rules of the game. And then you have to play better than anyone else.” In arbitration, that means figuring out which organizations’ rules are best suited for your arbitration clause. This post is designed to help drafters make that decision by giving a...

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SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations

By Liz Kramer | June 20 2013

Class Arbitration, Validity of Arbitration Agreement In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their...

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Massachusetts Invalidates Arbitration Agreement Because Plaintiffs Could Not Effectively Pursue Small Value Claims

By Liz Kramer | June 13 2013

Class Arbitration, Validity of Arbitration Agreement As we were waiting for SCOTUS's decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts.  In an opinion that could be a blueprint for other plaintiff-friendly states, the supremes in Massachusetts held that courts may invalidate...

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SCOTUS Affirms Arbitrator’s Decision To Allow Class Arbitration in Sutter

By Liz Kramer | June 10 2013

Appealing Arbitration Decisions, Class Arbitration The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties' agreement, her "construction holds, however good, bad, or ugly."  Oxford Health Plans LLC v. Sutter, 569 U.S. ___ (June...

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Third Circuit Clarifies When Additional Discovery Must Be Allowed On Arbitrability

By Liz Kramer | June 3 2013

Validity of Arbitration Agreement In an opinion that feels a bit like a report from the annual meeting of arbitration nerds, the Third Circuit last week clarified when district courts must allow discovery about arbitrability.  Guidotti v. Legal Helpers Debt Resolution, LLC, ___ F.3d ___, 2013 WL 2302324 (3d Cir. May 28, 2013).  Although the standard...

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The Relationship Is Governed By Multiple Agreements And Not All Require Arbitration; Must You Arbitrate?

By Liz Kramer | May 23 2013

Scope of Arbitration Agreement In the past few months, two federal appellate courts have had to determine whether parties were bound to arbitrate claims that arose from relationships governed by multiple agreements, only some of which called for arbitration.  While the courts reached different conclusions based on the facts, they both relied on...

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