Today’s post concerns a perennially hot topic: class actions. In particular, do courts decide whether an arbitration agreement allows for class actions? Or do arbitrators? (Because, it turns out, there are actually some corporations who have not inserted class action waivers in their consumer contracts.) To date, four circuit courts have held that class arbitrability
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.
Comparison of AAA, JAMS, CPR Commercial Rules (7th Blogiversary!)
By Liz Kramer on
Posted in ArbitrationNation Roadmaps (primers)
Arbitration Nation is seven years old, and has 330 posts under its belt (and no seven year itch). Hip hip hooray! One of those posts is a perennial favorite, coming up over and over in search results: When Should You Choose JAMS, AAA or CPR Rules? Because that comparison is five years old, we …
Dispositive Motions in Arbitration? Just Do It.
By Liz Kramer on
Today’s post continues our series of arbitration refreshers, to combat the Summer Slide. It was researched and written by Anne Marie Buethe from the University of Iowa Law School.
Despite clear grounds for authority, arbitrators remain wary of hearing and granting dispositive motions.* While arbitrators posit reasons for their reluctance—the risk of vacatur being…
Three Failures To Disclose, Only One Arbitration Award May Be Vacated
By Liz Kramer on
Posted in Appealing Arbitration Decisions
Okay, folks, we are still combating the summer slide here. Today’s refresher rule is this: If an arbitrator fails to disclose a substantial relationship, the resulting award can be vacated under 9 U.S. C. 10 (a)(2). But, not all relationships are substantial, as the cases today make clear.
Beginning in my backyard, the appellant in …
No Arbitration Because Ricky Martin Is a Singer, Not a Signer
By Liz Kramer on
Posted in Non-signatories
Have you heard of the “summer slide“? It’s the name for how students forget information they learned during the school year over summer vacation, but it’s equally apt for grown ups. I definitely feel a little less smart when I am reading vampire novels by the pool in 95 degree heat.
Anyhow, Arbitration…
Federal Circuits Split On Whether Uber Can Enforce Arbitration Clause
By Liz Kramer on
Almost a year ago, the Second Circuit praised the clean, readable design of Uber’s app. Because the reference to Uber’s terms of service was not cluttered and hyperlinked to the actual terms, the Second Circuit held Uber could enforce its arbitration agreement and the class action waiver within it. But, just last week, the First…
SCOTUS Takes Third Arbitration Case For Next Term (and bonus nursing home arbitration cases)
By Liz Kramer on
Posted in Validity of Arbitration Agreement, Year In Review
I am a true arbitration nerd. But, when SCOTUS takes a THIRD arbitration case for its upcoming term, I wonder if the Justices are more obsessed with arbitration than I am. (Reminder of the other two here.) If they hear about the same total number of cases as this year (69), arbitration will…
Trickle Down Arbitration-omics
By Liz Kramer on
Posted in Class Arbitration, Uncategorized
Lots of folks are writing about the long-term impact of SCOTUS’s recent decision in Epic Systems, but it is also important to note that there has been immediate, short-term impact.
For example, a lead plaintiff agreed to take her sex discrimination case against a law firm to individual arbitration, abandoning her putative class action,…
Delegating Arbitrability To Arbitrator Is Effective In Denying Class Actions
By Liz Kramer on
I have been making my way through the rest of the May arbitration cases (the photo shows how high my stack got), and one thing that stands out is this: I was right. Delegation clauses remain a hot topic in arbitration law.
Three recent cases demonstrate the power of having a delegation clause in…
Justice Gorsuch Delivered . . . A Win For Class Arbitration Waivers
By Liz Kramer on
Posted in Class Arbitration, Year In Review
SCOTUS finally delivered its decision today in Epic Systems Corp. v. Lewis, the consolidated case that addresses whether employers can require employees to give up their right to class or consolidated litigation as part of an arbitration agreement. In a 5-4 decision authored by Justice Gorsuch, the Court found that class action waivers are…