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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Fishermen Avoid Being Caught In Arbitration’s Net

By Liz Kramer | May 22 2016

Scope of Arbitration Agreement, Validity of Arbitration Agreement What are the defining characteristics of an arbitration agreement? The dissent in a new 9th Circuit case took on that vexing issue, while the majority sidestepped it altogether while refusing to compel arbitration. In Boardman v. Pacific Seafood Group, __ F.3d __, 2016 WL 1743350 (9th Cir. May 3, 2016), a group of...

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Eight [Months] Is Enough — To Waive Your Arbitration Rights

By Liz Kramer | May 11 2016

Waiver of Right to Arbitrate Today's post is brought to you by the number 8.  The 8th Circuit Court of Appeals issued a new opinion yesterday finding that a defendant who litigated in court for 8 months waived its right to arbitrate (aka, ARBITR8) plaintiff's employment claims.  [That could be my vanity plate!!] Messina v. North Central...

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Hold Onto Your Hats: CFPB Proposed Rules Will Lead to Lots of Class Action Litigation

By Liz Kramer | May 5 2016

Class Arbitration, Year In Review Today the Consumer Financial Protection Bureau proposed the rules that it previewed last fall, following up on its Arbitration Study. Those rules would essentially ban class action waivers from consumer financial agreements, as well as requiring arbitral institutions to provide data on consumer financial disputes to...

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Unvacating Arbitration Awards: Quarterbacks and Car Accidents

By Liz Kramer | April 26 2016

Appealing Arbitration Decisions The Second Circuit reminded us yesterday that judicial review of arbitration awards is “among the most deferential in the law.”  And when district courts are not sufficiently deferential, their decisions are likely to be overturned.  That happened recently in Tom Brady’s “deflate-gate” arbitration, and in...

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Sign O’ The Times: SCOTUS Denies Cert In Franchise Arbitration Dispute

By Liz Kramer | April 22 2016

Scope of Arbitration Agreement, Validity of Arbitration Agreement On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert  in a case involving the intersection between arbitration and franchise regulation.  The petition was filed in November of 2015, and after the respondent initially declined to respond, the Court specifically requested a...

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Fifth Circuit Finds Federal Jurisdiction Over $10,000 Arbitration Award

By Liz Kramer | April 14 2016

Appealing Arbitration Decisions The Fifth Circuit recently addressed a hard question: what should the court consider when determining the amount in controversy for purposes of federal jurisdiction over an arbitration award?  The court decided to rely on the amount originally sought by the claimant in the demand for arbitration.  Pershing, LLC v....

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Fourth Circuit Finds Availability Of Class Arbitration Is Question For Courts, Not Arbitrators

By Liz Kramer | March 30 2016

Class Arbitration Joining the Sixth and Third Circuit Courts of Appeals, the Fourth Circuit this week held that "whether an arbitration clause permits class arbitration is a gateway question of arbitrability for the court."  Dell Web Communities, Inc. v. Carlson, 2016 WL 1178829 (4th Cir. Mar. 28, 2016). At issue was whether...

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Exhibit C For The Case That California Is No Longer Anti-Arbitration

By Liz Kramer | March 30 2016

Validity of Arbitration Agreement The Supreme Court of California this week enforced the arbitration agreement between an employee and employer.  Yes, you read that right.  While reputed to be reliably anti-arbitration, California's highest court continues to provide evidence that it is tired of being reversed by SCOTUS * and is ready to follow...

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In 3 Recent Decisions, Supreme Court of Arkansas Deeply Divided on Arbitration

By Liz Kramer | March 24 2016

Validity of Arbitration Agreement The Supreme Court of Arkansas has issued three opinions within the span of four weeks, all on the topic of whether defendants can compel arbitration. Each of the opinions came with a vigorous dissent.  The cases offer an interesting look at a state high court that appears to be struggling to deal with FAA case law...

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Ninth Circuit Refuses To Enforce Arbitration Clause In Sham Franchise Agreement

By Liz Kramer | March 16 2016

Validity of Arbitration Agreement A short new opinion from the Ninth Circuit may run counter to long-standing Supreme Court precedent. In Casa Del Caffe Vergnano v. Italflavors, 2016 WL 1016779 (9th Cir. Mar. 15, 2016), the court refused to enforce an arbitration agreement in a contract that the parties admitted signing, because the parties...

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