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 →
Appealing Arbitration Decisions, Waiver of Right to Arbitrate In answer to the proverbial question "how much litigation waives the right to arbitrate?," the Third Circuit has responded that ten months does the trick, if the party seeking arbitration has engaged in significant motion practice, regardless of whether any discovery was exchanged. In re Pharmacy Benefit Managers...
Scope of Arbitration Agreement, Validity of Arbitration Agreement Two circuit court decisions in the last week have denied arbitration motions based on the lack of an arbitration agreement between the parties. These decisions show that while the federal presumption in favor of arbitration is generally a strong current, it is not strong enough to pull non-signatories into...
Appealing Arbitration Decisions, Class Arbitration, Waiver of Right to Arbitrate After an arbitration about-face by the defendant in a class action, the Eleventh Circuit ruled that the defendant had waived its right to compel arbitration by: participating in litigation for two years and affirmatively declining to enforce its arbitration agreement with the plaintiffs until after SCOTUS issued...
Appealing Arbitration Decisions In the last post, the Fifth Circuit affirmed an arbitration award against Morgan Keegan. The Ninth Circuit just affirmed an arbitration award against Morgan Keegan in a sister case. In less than two pages, the Ninth Circuit rejected Morgan Keegan's arguments that the arbitrators were partial or exceeded their...
Appealing Arbitration Decisions, Scope of Arbitration Agreement The Fifth Circuit recently refused to vacate an arbitration award, despite the loser's arguments that: the arbitrators decided claims outside the scope of the arbitration agreement; and the winner's expert used incorrect damage numbers in his testimony. Morgan Keegan & Co., Inc. v. Garrett, 2012 WL 5209985...
Arbitration Rules/Procedures, ArbitrationNation Roadmaps (primers) This post is dedicated to a perennial favorite topic: subpoenas for documents in arbitration. Why this topic and not something hot off the presses? Because SCOTUS has not yet accepted or denied the cert petition in Sutter, and no cases have come out recently that meet my high standards for discussion on this blog...
Arbitration Rules/Procedures, Validity of Arbitration Agreement I see more and more arbitration agreements that contain their own limitations period (the timeline for bringing a dispute in arbitration). Are all of those necessarily enforceable? No. In Order of United Commercial Travelers of America v. Wolfe, 331 U.S. 586 (1947), the Supreme Court held that contracts...
Scope of Arbitration Agreement, Validity of Arbitration Agreement In an opinion that runs less than three pages, the Eighth Circuit ruled that a managing broker-dealer is not obligated under the FINRA rules to arbitrate with a group of investors who purchased securities from another party. Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, __ F.3d. __, 2012 WL 4477433 (8th...
Appealing Arbitration Decisions In a new decision from the First Circuit, which refuses to make any definitive pronouncements about the law on vacating arbitration awards, the court said it assumes "with some confidence" that if an arbitration award directed a party to violate an administrative agency rule, it could be vacated on that basis. In...
Validity of Arbitration Agreement This is unheard of! There were two circuit court decisions finding no binding agreement to arbitrate in a single week. (The first is here.) In this new decision from the Third Circuit, an employer's submission of forms to a union fund along with fringe benefits is held insufficient to compel that employer to...
