Some arbitration topics just never die. This post strings together new cases on three of those topics: 1) whether arbitration agreements that call for the now-defunct National Arbitration Forum (NAF) are enforceable; 2) formation fights in nursing home agreements; and 3) the continuing fight between the NLRB and the courts over class action waivers in
Defendant's Failure To Pay Arbitration Fees Cannot Stymie Claims Against It
Usually, when faced with a respondent who refuses to pay its share of the arbitration fees, a claimant simply pays both sides’ fees, so that the arbitration can proceed. A new case out of the Tenth Circuit answers the question: what happens if it does not pay both sides’ fees? Pre-Paid Legal Services, Inc. v.
5th Circuit Vacates Arbitration Award Conducted By Wrong Arbitrator Under Wrong Rules
Let’s say your arbitration agreement calls for arbitration administered by JAMS under JAMS rules, but the arbitrator is independent and applies AAA rules, over one party’s objection. A new decision from the Fifth Circuit says that is enough to vacate the resulting award.
In Poolre Insurance Corp. v. Organizational Strategies, Inc., __ F.3d__, 2015 WL
Beyond the Headlines Part I: What The New CFPB Report Teaches Us About Arbitration Clauses
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
Lessons From Lance Armstrong About the Finality of Arbitration Awards
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
Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair
The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL 5503393 (Haw. Oct. 31, 2014). The parties can either jointly agree to a forum, or the court will
ArbitrationNation's Third Anniversary Threesome
This week marks the third anniversary of this blog devoted to interpretations of the Federal Arbitration Act. (Here’s the first post.) After 155 posts, can there possibly be more to say? Yes, indeed. Three new opinions from federal courts of appeals demonstrate how new issues keep “cropping” up in arbitration law each week.
The
Arbitration Award Vacated Because Arbitrators Were Impartial
Although we usually expect arbitrators to be impartial, the Supreme Court of Texas vacated an arbitration award because the chosen arbitrators were too impartial. Americo Life, Inc. v. Myer, __S.W.3d__, 2014 WL 2789429 (Tex. June 20, 2014). Because the court found the parties’ agreement allowed each side to choose an arbitrator who was partial
Eighth Circuit Finds Incorporation Of AAA Rules Authorizes Arbitrator To Determine Whether Non-Signatory Can Arbitrate
In a short and sweet opinion issued just six weeks after argument, the Eighth Circuit yesterday held that an arbitrator was authorized to decide whether a non-signatory was able to arbitrate a dispute. Eckert/Wordell Architects, Inc. v. FJM Props. of Willmar, LLC, __ F.3d __, 2014 WL 2922343 (8th Cir. June 30, 2014).
The
A Motion to Compel Arbitration “Answers” a Complaint
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