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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SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations

By Liz Kramer | June 20 2013

Class Arbitration, Validity of Arbitration Agreement In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely because proving their claims on an individual basis would cost many times more than their...

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Massachusetts Invalidates Arbitration Agreement Because Plaintiffs Could Not Effectively Pursue Small Value Claims

By Liz Kramer | June 13 2013

Class Arbitration, Validity of Arbitration Agreement As we were waiting for SCOTUS's decision in AmEx, we got a decision on vindicating statutory rights from a different high court: the Supreme Judicial Court of Massachusetts.  In an opinion that could be a blueprint for other plaintiff-friendly states, the supremes in Massachusetts held that courts may invalidate...

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SCOTUS Affirms Arbitrator’s Decision To Allow Class Arbitration in Sutter

By Liz Kramer | June 10 2013

Appealing Arbitration Decisions, Class Arbitration The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties' agreement, her "construction holds, however good, bad, or ugly."  Oxford Health Plans LLC v. Sutter, 569 U.S. ___ (June...

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Third Circuit Clarifies When Additional Discovery Must Be Allowed On Arbitrability

By Liz Kramer | June 3 2013

Validity of Arbitration Agreement In an opinion that feels a bit like a report from the annual meeting of arbitration nerds, the Third Circuit last week clarified when district courts must allow discovery about arbitrability.  Guidotti v. Legal Helpers Debt Resolution, LLC, ___ F.3d ___, 2013 WL 2302324 (3d Cir. May 28, 2013).  Although the standard...

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The Relationship Is Governed By Multiple Agreements And Not All Require Arbitration; Must You Arbitrate?

By Liz Kramer | May 23 2013

Scope of Arbitration Agreement In the past few months, two federal appellate courts have had to determine whether parties were bound to arbitrate claims that arose from relationships governed by multiple agreements, only some of which called for arbitration.  While the courts reached different conclusions based on the facts, they both relied on...

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Federal Circuit Refuses To Enjoin International Arbitration of Patent Claims

By Liz Kramer | May 16 2013

Appealing Arbitration Decisions, Litigation vs. Arbitration Just after I posted about the awesome power of federal courts to enjoin other cases, the Federal Circuit reminds us the power is not absolute.  In Sanofi-Aventis Deutschland Gmbh v. Genentech, Inc., __ F.3d __, 2013 WL 1921073 (Fed. Cir. May 10, 2013), it affirmed the district court's decision not to enjoin a foreign...

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Recipe For The Best Arbitration Agreement Ever (Post #100)

By Liz Kramer | May 9 2013

ArbitrationNation Roadmaps (primers) As a thank you to all the subscribers and readers who continue fueling Arbitration Nation's success, this 100th blog post contains my recipe for the Best Arbitration Agreement Ever.  (I know, where did the time go??  The blog is growing up so fast!)  What should your arbitration agreement include?  How can...

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Federal Courts Can Enjoin State Court Litigation of Arbitrable Claims

By Liz Kramer | May 3 2013

Arbitration Rules/Procedures, Litigation vs. Arbitration In a new case that reminds federal judges everywhere to sing "I've got the power!" like C&C Music Factory, the Fifth Circuit reiterates that federal courts can stay related state court actions if necessary to "protect or effectuate" an order compelling arbitration.  American Family Life Assurance Co. of Columbus...

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Arbitrator’s Creative IP Remedy Upheld Because It Furthered “General Aims of Agreement”

By Liz Kramer | April 25 2013

Appealing Arbitration Decisions In a dispute over whether an arbitrator has authority to grant a video game developer and publisher a perpetual license in the intellectual property as a remedy for the developer's fraud and breaches of contract, the Fifth Circuit found that the arbitrator's creative award must be upheld under the Federal Arbitration...

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Ninth Circuit Revives California Law That Allows Plaintiffs Seeking Injunctive Relief To Avoid Arbitration

By Liz Kramer | April 17 2013

Class Arbitration, Validity of Arbitration Agreement More than one year ago, a three-judge panel of the Ninth Circuit determined that California case law, which precluded arbitration of claims asking for public injunctive relief, was preempted by the Federal Arbitration Act.  Upon rehearing the case en banc, the Court backpedaled.  Kilgore v. KeyBank Nat'l Assoc., __...

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