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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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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LawJournals

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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PumpkinSeedsSepia

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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Argentinelogo

SCOTUS Set To Hear At Least One Arbitration Case This Term

By Liz Kramer | October 10 2013

Appealing Arbitration Decisions The U.S. Supreme Court has been knocking out blockbuster arbitration opinions annually in recent years.  2010?  Stolt-Nielsen and Rent-a-Center.  2011?  Concepcion.  2012? CompuCredit (Okay, that does not qualify as a blockbuster.) 2013? AmEx and Sutter.  At this point, SCOTUS has accepted roughly half of the...

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Rules Update: Improved AAA Commercial Rules; NAF Rules Not An Obstacle To Enforcing Arbitration

By Liz Kramer | October 2 2013

Arbitration Rules/Procedures, Validity of Arbitration Agreement On October 1, new Commercial Arbitration Rules became effective at the American Arbitration Association (AAA).  These rules are likely to apply to all commercial arbitrations filed on and after October 1 (unless an arbitration agreement specifically provides for old rules).  The AAA posted its own summary of the...

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Two Circuit Courts Demonstrate How Difficult It Is To Vacate Arbitration Awards

By Liz Kramer | September 25 2013

Appealing Arbitration Decisions In recent weeks, both the Second and Sixth Circuits showed how difficult it is to vacate arbitration awards. The Second Circuit decision has more drama, so I'll start there.  In Kolel Beth Yechiel Mechil of Tartik-Ov, Inc. v. YLL Irrevocable Trust, __ F.3d __, 2013 WL 4609100 (2d Cir. Aug. 30, 2013), the losing...

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Illusoriness Gains In Popularity As An Arbitration Buster

By Liz Kramer | September 17 2013

Validity of Arbitration Agreement You hear more about Lena Dunham than you expect, given the audience for "Girls", right?  (Read this article for more.)  The same is true, or should be true, for the contract defense of illusoriness.  After decades of disuse, it is popping up more and more often as a defense to the enforcement of arbitration...

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