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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Colours of Saint Thomas

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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Knight in shining armor

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...

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CarBrake

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...

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Any Agreement To Submit Disputes To A Third Party Is An “Arbitration Agreement” Subject to FAA

By Liz Kramer | January 24 2013

Litigation vs. Arbitration, Validity of Arbitration Agreement Did you know that you can form an arbitration agreement without ever using the word "arbitration"?  That's what the Second Circuit held this week in Bakoss v. Certain Underwriters at Lloyds of London, __ F.3d __, 2013 238708 (2d Cir. Jan. 23, 2013). Bakoss analyzed the clause in a disability insurance...

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utah-ski

Abstention Trumps Arbitration In Tenth Circuit

By Liz Kramer | January 16 2013

Litigation vs. Arbitration, Waiver of Right to Arbitrate The Tenth Circuit this week refused to consider a plaintiff's substantive arguments about its right to arbitrate because it found abstention was appropriate under the Colorado River doctrine.  D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., __ F.3d __, 2013 WL 150221 (10th Cir. Jan. 15, 2013).  Though the...

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Eighth Circuit “Owes No Deference” to NLRB Ruling on Class Arbitration

By Liz Kramer | January 10 2013

Appealing Arbitration Decisions, Class Arbitration One year ago, the NLRB ruled in D.R. Horton, Inc. that it is a violation of federal labor law for employers to require their employees to sign arbitration agreements waiving class actions, and that any arbitration agreements waiving class arbitration would be void.  This week, the Eighth Circuit became the first...

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The Only Five Good Reasons To Put Arbitration In Your Contract

By Liz Kramer | January 4 2013

ArbitrationNation Roadmaps (primers), Litigation vs. Arbitration Let's say you are considering updating your form contract, or you are in the midst of negotiating a new contract with someone.  Should you include mandatory arbitration for resolving any disputes?  Assuming you have the choice, my view is you should only include arbitration if at least one of these five factors...

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2012 in Arbitration Law: Is Class Arbitration Naughty or Nice?

By Liz Kramer | December 20 2012

Class Arbitration, Year In Review The big issue in arbitration law in 2012 was class arbitration.  Many state court opinions that had found class arbitration waivers unconscionable were preempted under federal law based on application of Concepcion.  And the federal circuit courts developed a split on how to interpret Stolt-Nielsen in cases where...

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