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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Walker

Kentucky Supreme Court Compares Giving Up Jury Trial To Giving Up Parental Rights; Refuses To Enforce Arbitration

By Liz Kramer | September 28 2015

Validity of Arbitration Agreement Nursing home arbitration agreements are among the most unpopular arbitration agreements around.  Last week, Kentucky's Supreme Court issued a lengthy, but fractured, opinion, finding three arbitration agreements were never validly formed because the signing parties did not have authority to give up the decedent's...

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Filing Claim In Court Is Not Enough To Waive Arbitration Right

By Liz Kramer | September 18 2015

Waiver of Right to Arbitrate The issue in analyzing whether a party waived its right to arbitrate is usually whether the defendant waited too long to assert the arbitration obligation.  But, this week the Second Circuit had the opportunity to address whether a plaintiff waives its right to arbitrate by the simple fact of bringing a case in...

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TomBrady

Musings on Tom Brady and Arbitrator Bias

By Liz Kramer | September 13 2015

Appealing Arbitration Decisions Again this year, a famous athlete put the spotlight on the process of arbitration.  Earlier this month, Tom Brady succeeded in convincing a federal judge to vacate the arbitration award against Brady.  (The four-game "deflategate" suspension -- a pdf of the decision is available through the link.) The decision...

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FerrisWheel

Unvacated: 11th Circuit Finds Repeat Arbitrator Not Biased

By Liz Kramer | August 28 2015

Appealing Arbitration Decisions The Eleventh Circuit has a lesson for future litigants: the presence of a repeat player is not enough to show the evident partiality needed to vacate an arbitration award under the Federal Arbitration Act. In  Johnson v. Directory Assistants, Inc., __ F.3d __, 2015 WL 4939578 (11th Cir. Aug. 20, 2015), an...

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To (b)(1) or not to (b)(1): What to Call your Rule 12 Arbitration Motion

By Liz Kramer | August 20 2015

Litigation vs. Arbitration, Uncategorized Let's say your client gets sued in court, the parties have an arbitration agreement, and you want to compel arbitration right away and not mess around with any other court proceedings. You already know you can make a motion to compel instead of an Answer, but you are stuck on this: what do you call the...

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ChampagneToast

A Four-Year Blogiversary – and an Infographic for Compelling Arbitration!

By Liz Kramer | August 11 2015

ArbitrationNation Roadmaps (primers) The primary purpose of this blog is to educate lawyers and clients about arbitration law. So, what better way to celebrate my fourth blogiversary than with an awesome new infographic about compelling arbitration! Making a motion to compel arbitration is trickier than it seems. When people call me for advice, I...

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HONG KONG - APRIL 15: Mercedes Benz Sign Close-Up on April 15, 2014 in Hong Kong. Mercedes-Benz is a German automobile manufacturer. The brand is used for luxury automobiles, buses, coaches, and trucks.

California Upholds Controversial Arbitration Clause Within Consumer Contract

By Liz Kramer | August 4 2015

Class Arbitration, Validity of Arbitration Agreement California is changing its tune.  Although previously known for decisions that flouted federal arbitration law, its decision yesterday in Sanchez shows the current California Supreme Court will abide by SCOTUS's interpretation of the FAA.  After a trial court and intermediate appellate court had ruled that the...

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Second Circuit Clarifies That Arbitrable Claims Should Be Stayed, Not Dismissed

By Liz Kramer | July 29 2015

Uncategorized Parties who ask a court to compel arbitration of all the plaintiff's claims have a decision to make: should they ask the court to stay the claims or dismiss them (if it finds them arbitrable)?   After noting that the federal courts of appeal are "about evenly divided" on that question, the Second Circuit held that...

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Pair of contracts containing generic text and fictious signatures with a pen on the grey surface of a desk

State Courts Disagree About Incorporating Arbitration Agreements By Reference (Post #200!)

By Liz Kramer | July 22 2015

Validity of Arbitration Agreement One way to challenge the very existence of an agreement to arbitrate is to say that the parties' contract said nothing about arbitration and did not validly incorporate any other document calling for arbitration.  Oklahoma and Alabama have recently come out at opposite ends of the spectrum in terms of what kind of...

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Should You Cut The Delegation Clause From Your Arbitration Agreement?

By Liz Kramer | July 15 2015

Validity of Arbitration Agreement A recent report showed that less than half of arbitration agreements in the consumer financial arena include delegation clauses in their arbitration agreements.  Two recent decisions from state high courts suggest that is a wise decision because courts do not like to enforce delegation clauses. (Reminder: a...

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