The Consumer Financial Protection Bureau released an “Arbitration Study” exceeding 700 pages to Congress this week. You have likely heard the headlines – most commentators assume that the CFPB will use the study to support an effort to restrict or regulate the use of “pre-dispute” arbitration in financial transactions. But, let’s not get ahead of
Liz Kramer
Liz Kramer current serves as Minnesota's Solicitor General. Previously, she was a partner at Stinson Leonard Street and the founder of the award-winning blog, ArbitrationNation.
Third Circuit Finds Pennsylvania Statute Preempted by FAA
By Liz Kramer on
Posted in Appealing Arbitration Decisions
The Third Circuit recently found that the Federal Arbitration Act preempts a Pennsylvania statute that restricts corporate plaintiffs in state and federal court in Pennsylvania to those companies that are registered to do business in Pennsylvania. Generational Equity, LLC v. Schomaker, 2015 WL 708481 (3d Cir. Feb. 19, 2015). In other words, a company…
Why The Arbitration Award Against Adrian Peterson Was Vacated
By Liz Kramer on
Posted in Appealing Arbitration Decisions
A federal judge in Minnesota today vacated the arbitration award that confirmed the NFL’s discipline of Adrian Peterson. You can read the decision here. The judge found two separate bases for vacating the award: 1) the award failed to “draw its essence” from the parties’ Collective Bargaining Agreement; and 2) the arbitrator exceeded his…
Lessons From Lance Armstrong About the Finality of Arbitration Awards
By Liz Kramer on
On February 4, an arbitration panel ordered Lance Armstrong to pay $10 million to his former promotions company, SCA, as a result of his “unparalleled pageant of international perjury, fraud and conspiracy” that covered up his use of performance-enhancing drugs. (Read the NYT story about it here.) What is curious about the award, from…
Fifth Circuit Un-Vacates Arbitration Award, Offering Guidance to District Courts
By Liz Kramer on
Posted in Appealing Arbitration Decisions
“When an arbitration goes an opponent’s way on the basis of questionable contract interpretation, parties often seek refuge in [Section] 10(a)(4). But the Supreme Court has made clear that district courts’ review of arbitrators’ awards under [that Section] is limited to the ‘sole question… of whether the arbitrator (even arguably) interpreted the parties contract.'”
Those…
Rare Claim Falls Outside Arbitration Agreement, Creates Piecemeal Litigation
By Liz Kramer on
Posted in Scope of Arbitration Agreement
Because of the strong federal policy favoring arbitration, and cases providing that any doubt about the scope of an arbitration agreement must be resolved in favor of arbitration, it is uncommon to find a decision holding that the parties’ claims are not within the scope of their arbitration agreement. But, the Supreme Court of Alabama …
Even in the Ninth Circuit, Courts Should Not Intervene Mid-Arbitration
By Liz Kramer on
Posted in Appealing Arbitration Decisions
It is generally accepted that courts may only engage in the very front and very back end of an arbitration. At the outset, courts may determine whether the parties agreed to arbitrate the dispute, and at the end, courts may determine if the arbitration met the basic fairness requirements of the Federal Arbitration Act. However,…
Who Decides Whether New Claims Are Precluded By Old Arbitration? An Arbitrator, Says 2d Circuit
By Liz Kramer on
We all know that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) apply with equal force to both arbitration awards and court orders. But, if your adversary brings new claims that you believe have already been determined in arbitration, where do you go to shut down those new claims — court…
SCOTUS Allows California to Interpret Federal Arbitration Act As Excluding Private Attorney General Claims
By Liz Kramer on
Today, the U.S. Supreme Court denied the petition for certiorari in the Iskanian case from the California Supreme Court. In doing so, SCOTUS allowed one of the most interesting Federal Arbitration Act interpretations in recent years to stand. As you may recall, the decision held that the Federal Arbitration Act did not apply to labor…
Second Circuit Un-Vacates Arbitration Award, Finding No Manifest Disregard
By Liz Kramer on
Posted in Appealing Arbitration Decisions
The Second Circuit reversed a district court’s vacatur of an arbitration award this week, finding that the arbitration panel did not manifestly disregard the law when it refused the respondent’s reading of a state statute. Sotheby’s Int’l Realty, Inc. v. Relocation Group, LLC, 2015 WL 64265 (2d Cir. Jan. 6, 2015). In doing so,…