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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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 __,...


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“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...


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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...


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Authority To Enter Into Contract Is Issue For Courts, Not Arbitrators

By Liz Kramer | February 21 2013

Litigation vs. Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement The Third Circuit just issued a decision that tries to divine the dividing line between challenges to the formation of contracts containing arbitration clauses (which are presumptively for courts), and challenges to the validity of contracts containing arbitration clauses (which are presumptively for arbitrators, if...


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Non-Signatories Lose In Two Federal Circuits When Trying To Enforce Arbitration

By Liz Kramer | February 21 2013

Validity of Arbitration Agreement Two federal circuit courts recently reversed district court decisions allowing non-signatories to compel arbitration.  The analysis emphasizes that for a defendant to prove equitable estoppel compels arbitration, the plaintiff's legal claims must be closely related to the contract containing the arbitration...


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Could Arbitration of Cost-Prohibitive State Law Claims Be Compelled While Similar Federal Claims Stay In Court?

By Liz Kramer | February 14 2013

Class Arbitration, Validity of Arbitration Agreement A recent decision from a federal district court in Tennessee raises a discrepancy in how the courts treat arbitration agreements that hinder a plaintiff's state law and federal law claims.  Cases under the FAA state that arbitration agreements cannot be enforced if enforcement means plaintiffs will not be able to...


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DOJ Message to SCOTUS: Do Not Enforce Arbitration Agreements That Invalidate Federal Statutory Rights

By Liz Kramer | February 7 2013

Class Arbitration, Validity of Arbitration Agreement On January 29, the U.S. Dept. of Justice filed an amicus brief supporting respondents in AmEx III, arguing that to enforce the class arbitration waiver would be to create a large loophole for important federal laws.  The Solicitor General has also asked to argue at the hearing on February 27.  To my knowledge, DOJ...



Prius Owners Put the Brakes On Arbitration With Non-Signatory Toyota

By Liz Kramer | February 1 2013

Class Arbitration, Scope of Arbitration Agreement, Validity of Arbitration Agreement, Waiver of Right to Arbitrate The Ninth Circuit ruled this week that a class of car owners could pursue their court claims against the manufacturer, Toyota, for product defects and false advertising, despite the existence of an arbitration agreement in each of the owners' purchase agreements with the car dealerships.  The court held that Toyota...