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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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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Preview of SCOTUS’s 2013 Double-Feature on Class Arbitration

By Liz Kramer | December 10 2012

Appealing Arbitration Decisions, Class Arbitration, Validity of Arbitration Agreement Just last Friday, the Supreme Court agreed to review a second circuit court case that allowed a class action to proceed, despite arguments that the arbitration clause precluded any collective actions.  The granting of these petitions is a fitting way to end a year in which there has been considerable discussion...

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Defendant Did Not “Waive” Goodbye to Arbitration Despite Litigating For 6 Months

By Liz Kramer | December 5 2012

Class Arbitration, Waiver of Right to Arbitrate In contrast to recent decisions from other circuit courts, the Fourth Circuit found a defendant did not waive its right to arbitrate, despite litigating for more than 6 months and conducting discovery.  Rota-McLarty v. Santander Consumer USA, Inc., __ F.3d __, 2012 WL 5936033 (4th Cir. Nov. 28, 2012). In this...

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Arbitration Nation Named Among 100 Best Blawgs of 2012!

By Liz Kramer | November 27 2012

Uncategorized This blog might as well have been called Arbitration Elation on November 26!  Not only was there a new arbitration decision from the Supreme Court, which only happens a couple times a year, but editors of the ABA Journal announced that they selected Arbitration Nation as one of the 100 best blogs in the country for...

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SoonerSchooner

SCOTUS Slaps Sooners With Severability Doctrine

By Liz Kramer | November 27 2012

Validity of Arbitration Agreement On Monday, the United States Supreme Court reminded the Oklahoma Supreme Court who is boss when it comes to the Federal Arbitration Act.  In Nitro-Lift Technologies, LLC v. Howard, 2012 WL 5895686 (U.S. Nov. 26, 2012), SCOTUS declared "It is a matter of great importance [] that state supreme courts adhere to a...

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Another Turkey Waives Its Right to Arbitration

By Liz Kramer | November 20 2012

Appealing Arbitration Decisions, Waiver of Right to Arbitrate In answer to the proverbial question "how much litigation waives the right to arbitrate?," the Third Circuit has responded that ten months does the trick, if the party seeking arbitration has engaged in significant motion practice, regardless of whether any discovery was exchanged. In re Pharmacy Benefit Managers...

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Arbitration Non-Signatories Lose in Fifth and Eighth Circuits

By Liz Kramer | November 14 2012

Scope of Arbitration Agreement, Validity of Arbitration Agreement Two circuit court decisions in the last week have denied arbitration motions based on the lack of an arbitration agreement between the parties.  These decisions show that while the federal presumption in favor of arbitration is generally a strong current, it is not strong enough to pull non-signatories into...

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