A resource for litigators, in-house counsel, and arbitrators
Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award? That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law.
The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine University School of…
This week the Supreme Court of California held that the FAA preempts California’s 2007 Gentry ruling, one that protected employees from nearly all class action waivers in arbitration agreements. Iskanian v. CLS Transp. Los Angeles, LLC, __ P.3d__, 2014 WL 2808963 (Cal. June 23, 2014). However, asserting its Californian-ness, the court found an clever…
Two courts recently refused to compel arbitration because the defendants could not prove that the parties had entered into an arbitration agreement at all. Therefore, the musical accompaniment to this post is “Do Re Mi” from The Sound of Music. “Let’s start at the very beginning, a very good place to start. When you read,…
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…
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,…
The Tenth Circuit ruled last week that arbitration case law from New Mexico is preempted by the FAA. This decision calls into question whether states can find arbitration agreements unconscionable simply for being unilateral, i.e. one party is bound to arbitrate its claims while the other party is free to litigate in court.
In 2012,…
Say it’s twenty degrees below zero outside, and you’d already seen boiling water turn into “snow” immediately upon making contact with the air, what would you do next? Assuming you were all caught up on your Words With Friends games, you would read the 168-page initial report of the Consumer Finance Protection Bureau about arbitration! …
Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a “gateway” issue of arbitrability that defaults to courts. This week, the Sixth Circuit was the first to take the bait and declare the availability of class actions a gateway question that a court decides unless…
The Third Circuit ruled last week 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.
In 2009, the Delaware courts decided to provide arbitration. The state amended its laws to create an arbitration process that was only open to disputes…
In a decision that confirms arbitrators’ broad discretion to not only fashion remedies, but also fashion sanctions, the Minnesota Court of Appeals held that an arbitrator did not exceed his power by issuing a severe sanction: denying one party the right to defend against certain claims after finding that party had fabricated evidence relating to…