I field a lot of good procedural questions about how arbitration pleadings should be styled. Some of them are answered within the text of the FAA, but many of them leave clerks of court and practitioners scratching their heads and getting creative. I will address one of those common questions today: is a motion to
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.
Three Lessons on Appealing from Arbitrations
By Liz Kramer on
Three decisions came out recently that offer guidance on appealing from arbitration awards. Here are three pearls of arbitration appeal wisdom, one from each case:
1. If you want to appeal from an arbitration, you must have a record. Sounds basic, right? But many parties, either due to confidence they will win in arbitration or …
Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability
By Liz Kramer on
In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin to summary judgment, but the FAA states in Section Four: “If the making of the arbitration agreement or the…
Arbitration Clauses Survive Their Contracts 99% Of The Time
By Liz Kramer on
The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it? I usually say yes, and thankfully the Sixth Circuit backed me up.
In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a class…
Employer's Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails
By Liz Kramer on
In the past year, if I wrote about “FLSA” and “arbitration” in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act. Today, however, is different. The Eleventh Circuit last week found that it was the…
SCOTUS Will Not Reconsider Fate Of Delaware's Business Arbirations; NLRB's Class Action Arbitration Decision Loses Again
By Liz Kramer on
SCOTUS announced today that it would not review the Third Circuit’s decision in Strine v. Delaware Coalition for Open Government, Inc, holding that Delaware’s Chancery Court could not offer its judges’ services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. Therefore, that decision is final and Delaware will now…
Deference to Arbitrators Is All The Rage Among Supreme Courts This Winter
By Liz Kramer on
Posted in Appealing Arbitration Decisions
You may have already heard that SCOTUS affirmed arbitrators’ authority to interpret contractual prerequisites to arbitration last week in BG Group, PLC v. Republic of Argentina. But that is just one of a number of recent decisions from high courts on the deference due arbitrators.
In the BG Group case, the D.C. Circuit had…
The Preemption Club
By Liz Kramer on
California is the Judd Nelson of The Preemption Club. (Or the John Bender, if you prefer using character names.) The Supreme Court has sent the California courts to preemption detention for ignoring the Federal Arbitration Act in blockbuster, groundbreaking cases (see Concepcion). But California cannot help itself. It keeps coming up with novel arguments…
Think You Have A Chance Of Vacating Your Arbitration Award? Read this.
By Liz Kramer on
Just how hard is it to vacate an arbitration award? The Sixth Circuit recently held that even if the arbitrator reached a result directly contrary to federal precedent, the arbitration award would be upheld. And the Tenth Circuit found that even if the arbitrator based his award on an agreement that does not support the…
No Federal Presumption of Arbitrability Until Court Finds Valid Arbitration Agreement
By Liz Kramer on
A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply? The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass the parties’ dispute,…