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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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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"Know the rules" handwritten with white chalk on a blackboard

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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Pyramid Scheme

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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old wooden abacus

Second and Ninth Circuits Allow Employers To Preclude Collective FLSA Claims, Rejecting NLRB Ruling

By Liz Kramer | September 4 2013

Class Arbitration, Validity of Arbitration Agreement, Waiver of Right to Arbitrate In January of this year, the Eighth Circuit was the first federal appellate court to refuse to adopt the National Labor Relations Board's ruling on class action waivers in employment contracts.  (The previous year, in D.R. Horton, the NLRB declared it a violation of federal labor law for employers to require...

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The Next Frontier of Arbitration Litigation: Lessons From State Courts

By Liz Kramer | August 19 2013

Appealing Arbitration Decisions, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate, Year In Review After reading more than 40 decisions about arbitration from state high courts, issued just in the past eight months, I have two bits of wisdom to share.  First, that is not the best way to spend your summer vacation, even for a devoted arbitration nerd.  And second, there are arbitration issues percolating in...

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massachusetts

First State Court Decision Is Reversed Under SCOTUS’ Amex Ruling

By Liz Kramer | August 5 2013

Class Arbitration, Validity of Arbitration Agreement Put this post in the "I called it" category. On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration.  On June 20, the U.S. Supreme Court decided...

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Limpets

Arbitration Awards Cannot Be Vacated Just Because Arbitrator Excluded Evidence

By Liz Kramer | August 1 2013

Appealing Arbitration Decisions, Arbitration Rules/Procedures In two decisions this week, courts consider whether arbitration awards can be vacated based on arbitrators' decisions to exclude evidence.  In both cases, the courts affirm an arbitrator's authority to make reasonable evidentiary decisions -- excluding hearsay and denying tardy subpoena requests -- as long as...

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