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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Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability

By Liz Kramer | April 10 2014

Class Arbitration, Validity of Arbitration Agreement In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin to summary judgment, but the FAA states in Section Four: "If the making of the arbitration...

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Arbitration Clauses Survive Their Contracts 99% Of The Time

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it?  I usually say yes, and thankfully the Sixth Circuit backed me up. In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a...

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Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails

By Liz Kramer | April 1 2014

Class Arbitration, Validity of Arbitration Agreement In the past year, if I wrote about "FLSA" and "arbitration" in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act.  Today, however, is different.  The Eleventh Circuit last week...

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SCOTUS Will Not Reconsider Fate Of Delaware’s Business Arbirations; NLRB’s Class Action Arbitration Decision Loses Again

By Liz Kramer | March 24 2014

Class Arbitration, Validity of Arbitration Agreement SCOTUS announced today that it would not review the Third Circuit's decision in Strine v. Delaware Coalition for Open Government, Inc, holding 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. ...

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Deference to Arbitrators Is All The Rage Among Supreme Courts This Winter

By Liz Kramer | March 16 2014

Appealing Arbitration Decisions You may have already heard that SCOTUS affirmed arbitrators' authority to interpret contractual prerequisites to arbitration last week in BG Group, PLC v. Republic of Argentina.  But that is just one of a number of recent decisions from high courts on the deference due arbitrators. In the BG Group case, the D.C....

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The Preemption Club

By Liz Kramer | March 3 2014

Class Arbitration, Uncategorized, Validity of Arbitration Agreement, Waiver of Right to Arbitrate California is the Judd Nelson of The Preemption Club.  (Or the John Bender, if you prefer using character names.)  The Supreme Court has sent the California courts to preemption detention for ignoring the Federal Arbitration Act in blockbuster, groundbreaking cases (see Concepcion).  But California cannot help...

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Think You Have A Chance Of Vacating Your Arbitration Award? Read this.

By Liz Kramer | February 25 2014

Appealing Arbitration Decisions, Litigation vs. Arbitration Just how hard is it to vacate an arbitration award?  The Sixth Circuit recently held that even if the arbitrator reached a result directly contrary to federal precedent, the arbitration award would be upheld.  And the Tenth Circuit found that even if the arbitrator based his award on an agreement that does not...

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No Federal Presumption of Arbitrability Until Court Finds Valid Arbitration Agreement

By Liz Kramer | February 12 2014

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply?  The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass...

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FAA Preempts More State Arbitration Law

By Liz Kramer | February 5 2014

Litigation vs. Arbitration, Validity of Arbitration Agreement The Tenth Circuit ruled last week that arbitration case law from New Mexico is preempted by the FAA.  This decision calls into question whether states can find arbitration agreements unconscionable simply for being unilateral, i.e. one party is bound to arbitrate its claims while the other party is free to litigate...

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Incorporating Arbitration Agreements By Reference: the Key is Reasonable Notice

By Liz Kramer | January 21 2014

Validity of Arbitration Agreement In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause?  The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration...

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