In an opinion that coins new terms and uses the insouciant tone of a blogger, the 11th Circuit just shut down a putative class action brought by homeowners against a vendor of roof shingles. The Court found that the terms and conditions printed on the exterior of the shingle packaging formed an enforceable contract (with
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.
Four Decisions Conclude Claims Outside Scope of Arbitration Agreement
By Liz Kramer on
Posted in Scope of Arbitration Agreement
There are only four ways to avoid an arbitration agreement. You can prove: 1) it was never formed; 2) it was formed, but is invalid under state law; 3) the current dispute is outside the scope of it; or 4) the other party waived their right to arbitrate (through litigation conduct). Today’s post is about…
Seventh Circuit Ducks Hard Question on Class Arbitrability
By Liz Kramer on
Posted in Appealing Arbitration Decisions, Class Arbitration
The Seventh Circuit issued an opinion last week that sounded like it would be a big deal. The case, Herrington v. Waterstone Mortgage Corp., 2018 WL 5116905 (7th Cir. Oct. 22, 2018), dealt with the fallout from SCOTUS’s Epic Systems, and addressed a class arbitrability issue of first impression, which meant it could…
Two State Courts Reject Arbitration Because Clause Lacked Administrator
By Liz Kramer on
Posted in Validity of Arbitration Agreement
This post is aimed at drafters of arbitration clauses. Because if you don’t insert an administrator for your arbitration, and don’t anticipate that the administrator may just stop providing services, your arbitration clause is dead in the water. At least, that’s the holding of two new state court cases.
Alabama Won’t Enforce Arbitration With Nursing Home When Patient Had Dementia
By Liz Kramer on
Posted in Non-signatories, Validity of Arbitration Agreement
Every time I think the spate of state supreme court opinions about nursing home arbitration surely must be over, another one comes out to prove me wrong. Last week, it was one from Alabama, finding an arbitration agreement was never formed, because the resident lacked capacity and the daughter who signed on his behalf…
Kentucky Goads SCOTUS In New Arbitration Decision; Plus SCOTUS Update
By Liz Kramer on
Posted in Validity of Arbitration Agreement, Year In Review
I would understand if not every state supreme court got the memo from last year’s SCOTUS decision on FAA preemption, Kindred, which reminded state courts that the FAA prevents state courts from imposing additional requirements on arbitration agreements that are not required for other types of contracts. But Kentucky definitely got the memo. The…
11th Circuit Thinks Class Arbitrability Is Not That Special
By Liz Kramer on
Posted in Class Arbitration
Usually the plaintiffs in a class action want to stay out of arbitration, but in the recent case of JPAY v. Kobel, 2018 WL 4472207 (11th Cir. Sept. 19, 2018), it was the class representatives who were fighting for arbitration. In particular, they wanted the arbitrator to decide whether they could have a class…
No Proof Blind Plaintiffs Aware Of Arbitration Clause, So Discrimination Class Action Proceeds In Court
By Liz Kramer on
Posted in Validity of Arbitration Agreement
The First Circuit just faced a fascinating formation issue: if a customer cannot see what she is signing, and no employee reads it to her or ensures she knows there are legal terms, is there a contract? With Justice Souter sitting by designation on the panel, the court answered “no,” and thereby kept a class…
Million Dollar Arbitration Award For Attorneys Vacated Due To Ethical Violation
By Liz Kramer on
Posted in Validity of Arbitration Agreement
In today’s post I recount an epic battle between the Rules of Professional Conduct (tagline: saving clients from unscrupulous lawyers for over 100 years!) and the Uniform Arbitration Act (tagline: saving arbitration from hostile judges for 60 years!) in the Supreme Court of California. Spoiler alert: the Rules of Professional Conduct win.
The story in…
Which Awards Were Entitled To A Summer Vacation?
By Liz Kramer on
Posted in Appealing Arbitration Decisions
I have saved up six opinions that considered whether to vacate an arbitration award over the summer.* Only one of those opinions vacated the award; the other five confirmed. To get a flavor of what types of arguments are winning and losing motions to vacate, here is a summary of those six.
Vacated
The lone…