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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The Easiest Arbitration Agreement to Avoid May Be the One Between Attorney and Client

By Liz Kramer | December 23 2013

Validity of Arbitration Agreement BY JEFF MASON The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements.  Although the First Circuit found its way around the issue, the Ninth Circuit took it...

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Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds for Vacating Award

By Liz Kramer | December 18 2013

Appealing Arbitration Decisions, Scope of Arbitration Agreement In the Hall Street decision in 2008, SCOTUS held that parties could not contractually enlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section.  This week, the Ninth Circuit held that parties also cannot contractually...

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Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration

By Liz Kramer | December 4 2013

Class Arbitration, Validity of Arbitration Agreement After three federal circuits had already refused to defer to the NLRB's decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB's critical holding: that precluding class arbitrations is a violation of federal labor law.  D.R. Horton, Inc. v. Nat'l Labor Relations Bd., __...

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ArbitrationNation Makes The Blawg 100 Again

By Liz Kramer | November 25 2013

Uncategorized The ABA Journal released its seventh annual list of the top 100 legal blogs in the country and ArbitrationNation is honored to be included for a second year in a row.  ArbitrationNation is the only blawg on the list devoted to arbitration.  (And it looks like one of only two from Minnesota authors...) Now that...

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West Virginia Has A Change Of Heart About Arbitration

By Liz Kramer | November 24 2013

Class Arbitration, Validity of Arbitration Agreement A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country.  There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses.  (Recall its arbitration feud with SCOTUS in 2012?)  But, this...

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Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts

By Liz Kramer | November 8 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a "gateway" issue of arbitrability that defaults to courts.  This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court...

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“Manifest Disregard of the Law” is Alive and Well and Vacating Arbitrations in Fourth Circuit

By Liz Kramer | November 7 2013

Appealing Arbitration Decisions The Federal Arbitration Act sets forth only four bases for vacating arbitration awards.  See 9 U.S.C. § 10 (a).    After SCOTUS's 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four bases are exclusive, de-legitimizing the creative bases that judges had developed...

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Halloween Special: Scary Results if Employers Overreach in Arbitration Clauses

By Liz Kramer | October 31 2013

Arbitration Rules/Procedures, Class Arbitration, Validity of Arbitration Agreement No haunted house can scare general counsel as much as an opinion invalidating their company's arbitration clause and thereby allowing a class action to proceed.  So, here is a Halloween tale for all to keep in mind. Ralphs Grocery Company hired Zenia Chavarria to work in the deli of one of its grocery stores. ...

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3d Circuit Says Delaware Can’t Have Secret Arbitrations By Judges

By Liz Kramer | October 28 2013

Arbitration Rules/Procedures, Class Arbitration, Litigation vs. Arbitration The Third Circuit ruled last week that Delaware's Chancery Court could not offer its judges' services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. In 2009, the Delaware courts decided to provide arbitration.  The state amended its laws to create an arbitration...

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Courts Stopping Non-Signatories From Compelling Arbitration Through Equitable Estoppel

By Liz Kramer | October 17 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement Now that we know the Supreme Court is not going to be addressing non-signatories' ability to compel arbitration this term (at least not in the Toyota case), we can take a moment to look at what lower courts are doing with that issue.   In short, the trend is for courts to clarify that it is very difficult...

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