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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Fourth Circuit Sends Franchisee To Individual Arbitration, Expands Application of Concepcion

By Liz Kramer | April 8 2013

Class Arbitration, Validity of Arbitration Agreement The Fourth Circuit issued a bold new arbitration decision last week, sending a putative class of shuttle drivers to arbitration while expanding its application of SCOTUS’ Concepcion decision beyond cases involving federal preemption of state arbitration law.  Muriithi v. Shuttle Express, Inc., __ F.3d __, 2013 WL...


Palette of the artist

Sixth Circuit Paints Vivid Picture of “Evident Partiality” Sufficient to Vacate Arbitration Award

By Liz Kramer | April 4 2013

Appealing Arbitration Decisions One of the very few ways to show evident partiality by an arbitrator is to show the arbitrator had financial ties to a party or witness in the proceeding, another is to show the arbitrator prejudiced a party by reversing a procedural or evidentiary ruling during the hearing.  The Sixth Circuit found a Michigan...



Plaintiffs Must Arbitrate Individually, Even If It Means No “Pattern-or-Practice” Claim

By Liz Kramer | March 27 2013

Class Arbitration, Validity of Arbitration Agreement All the cool kids are talking about class arbitration lately. . .  There are the two cases pending before SCOTUS, and now the Second Circuit confirms its place in the "in crowd" with a decision forcing a class of employees into arbitration in Parisi v. Goldman, Sachs & Co., __ F.3d __, 2013 WL 1149751 (2d...


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SCOTUS Struggles With Standard Of Review For Arbitrator’s Decision To Allow Class Arbitration

By Liz Kramer | March 25 2013

Class Arbitration While the oral argument before the United States Supreme Court in Sutter today was ostensibly about whether to affirm an arbitrator's decision that the parties' contract authorized class arbitration, the decision really turns on how the Court will review all arbitration decisions.  (Transcript here.)  Multiple...


Panama Hat

Seventh Circuit Is Sick Of Arbitration Appeals; Threatens “High Risk of Sanctions”

By Liz Kramer | March 19 2013

Appealing Arbitration Decisions In an opinion released yesterday, the Seventh Circuit schooled appellant's counsel first on the application of the New York Convention and Panama Convention, then on the high standard of review it applies to commercial arbitration awards, and finally expressed profound disappointment with the frequency of motions to...


Ballot box

Contributions To Arbitrator’s Judicial Campaign Are Not Enough To Establish “Evident Partiality”

By Liz Kramer | March 12 2013

Appealing Arbitration Decisions The Third Circuit refused to vacate an arbitrator's award, despite allegations that she failed to disclose contributions the defendant's parent company had made to her judicial campaign and failed to disclose that she co-taught a seminar with in-house counsel for the defendant's parent company.  Freeman v....



Study of Corporate Counsel Shows Arbitration Is Past Its “Tipping Point,” Usage Declining

By Liz Kramer | March 8 2013

Litigation vs. Arbitration A new article is out with more detail about how opinions among counsel for Fortune 1000 companies have changed over the last 15 years with respect to arbitration and mediation.  (I posted initial info here last spring.) By comparing results of a 1997 survey of Fortune 1,000 corporate counsel with results of...



Nursing Home Cannot Compel Arbitration Under Agreement Signed By Deceased Resident’s Son

By Liz Kramer | March 6 2013

Validity of Arbitration Agreement The Eighth Circuit made quick work of a nursing home's argument in favor of compelling arbitration this week.  In a suit alleging negligent care of a resident, the court ruled that the arbitration agreement was not enforceable because the resident never signed it.  GGNSC Omaha Oak Grove, LLC v. Payich, __ F.3d __,...


Home Construction

“Cheeky” Maryland Rule, Requiring Mutuality In Arbitration Agreements, Not Preempted Under Concepcion

By Liz Kramer | February 27 2013

Validity of Arbitration Agreement In most cases, if this blog mentions Concepcion, it means that a court has found a state statute or line of decisions is preempted by the FAA.  A Maryland rule, however, recently ran the Concepcion gauntlet and survived.  See Noohi v. Toll Bros., Inc., __ F.3d __, 2013 WL 680690 (4th Cir. Feb. 26, 2013). The...


Supreme Court USA

SCOTUS Hears AmEx III: Argument highlights

By Liz Kramer | February 27 2013

Class Arbitration, Validity of Arbitration Agreement The Supreme Court heard arguments in AmEx III today, the case that presents the question whether an arbitration agreement precluding class actions can be invalid if it makes it impossible for plaintiffs to vindicate federal statutory rights (in this case, because individual antitrust cases would be prohibitively...