This blog might as well have been called Arbitration Elation on November 26!  Not only was there a new arbitration decision from the Supreme Court, which only happens a couple times a year, but editors of the ABA Journal announced that they selected Arbitration Nation as one of the 100 best blogs in the country for a legal audience.  Arbitration Nation was the only arbitration blog on the list.  (Please check out some of the other blogs on the list — it is a stellar group of blogs on a wide variety of legal subjects.)

Thank you to all of you who nominated this blog for the Blawg 100 list.  And, if you missed your opportunity to vote, it’s not too late!  Until Dec. 21, the ABA Journal is asking for votes to help them differentiate among the top 100 (Arbitration Nation is in the “niche” category).  Needless to say, I’d love your continued support.




Take out your birthday hats and balloons — Arbitration Nation is celebrating its first full year of existence!  I have enjoyed reading all the developments in arbitration law over the past year and connecting with many people — through this blog, listservs, emails and Twitter– about their reactions to the case law. 

Here are some fun stats:

Posts: 58

Visitor Growth:  The volume of monthly visitors has grown six-fold in the past twelve months  (plus many people see the content on other websites, like Lexology, ADRTimes, JDSupra, and then the content scraping sites that we battled for a few months….)

Pages per visit: 1.72

Most visited post: Dissonance between SCOTUS and BUSINESS on Arbitration

Most frequent search terms that get people to the blog (after “not provided”): Arbitration Nation and (or fat finger variations, like Arbitration natino); then “supreme court arbitration cases florida”

Award: Among “Top 25 Minnesota Blawgs”

Posts with pop culture references in title: 7 

Reflecting on the past year reminded me of Malcolm Gladwell’s book Outliers.  I took away two main things from that book:  1) I should red-shirt my son from kindergarten if I want him to play professional sports; and 2) it takes 1,000 practices to be really good at something.  At this rate, it would take me 17 years to become an “outlier!” (And my son would be ready to red-shirt for college, not kindergarten.)  But, whether I have another sixteen years in me or not, the point is I am just getting started, and I hope to keep fine-tuning the content.  As always, please contact me if you have ideas for a blog post or for how to make this blog more useful!

Happy Thanksgiving from Arbitration Nation! 

There are no new and exciting cases to talk about,* so I am reverting to the Thanksgiving staple — talking about what I am thankful for.  And, I am thankful for all of you!  Starting this blog has been one of the highlights of my professional year.  Not only has Arbitration Nation gotten an impressive number of visitors in its first three months, but it has been featured as a “contributor” on other websites about dispute resolution, and has prompted fascinating emails from many of you (forwarding me articles and journals, or telling the tales of your own arbitration or your litigation over arbitration). 

For those of you who just can’t get enough information about dispute resolution, here are some other blogs and websites you may want to check out**: (variety of articles and resources on conflict resolution, mediation and arbitration) (focus is international arbitration) (the AAA’s newsletter) (“Disputing”) (“ADR toolbox” — has a “blog roll” of interesting articles in the header)

* But there are always un-exciting cases to talk about.  For example, the Federal Circuit does not consider arbitration proceedings privileged, and therefore held that a third-party can discover information about a completed arbitration (Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, 2011 WL 5529821 (Fed. Cir. Nov. 15, 2011)), and the highest court in New York will not vacate an arbitration just because the arbitrator’s son is a member of Congress who has taken positions on issues relevant to the arbitration (U.S. Electronics, Inc. v. Sirius Satellite Radio, Inc., 2011 WL 5526016 (N.Y. Nov. 15, 2011)).

** If you know of a great arbitration website that I did not include, please email me about it!   (My email is on the “our bloggers” tab.)

Enjoy your holiday!

Despite the Supreme Court’s best efforts, some myths of arbitration law just will not die.  In yesterday’s per curiam decision of the Supreme Court, the Justices tried to put a stake through the heart of a common myth: that a party may successfully avoid a motion to compel arbitration by arguing that not all claims and/or not all parties fall within the scope of the arbitration agreement.  KPMG LLP v. Cocchi, __ U.S. __, 2011 WL 5299457 (Nov. 7, 2011).  Surely you have seen this in your cases, the non-moving party usually invokes the phrase “piecemeal litigation,” i.e. “if I am forced to arbitrate, it will result in expensive and duplicative piecemeal litigation.”  SCOTUS is tired of this argument.

 In Cocchi, 19 investors in what turned out to be a Ponzi scheme brought four claims against the auditor, KPMG, in state court in Florida.  (Florida is the same state whose refusal to compel arbitration got smacked down in 2006’s Buckeye Check Cashing v. Cardegna decision.)  KPMG moved to compel arbitration based on provisions of its contract with its client, the alleged Ponzi schemer.  The contract stated that “[a]ny dispute or claim arising out of or relating to … the services provided [by KPMG] … (including any dispute or claim involving any person or entity for whose benefit the services in question are or were provided) shall be resolved” either by mediation or arbitration.

The Florida trial court and appellate court denied KPMG’s motion to compel arbitration.  Because KPMG was relying on its contract with the Ponzi schemer, and had not contracted with the investors, the Florida courts noted that the arbitration provisions could only be enforced if the claims were “derivative.”  After analyzing two of the four claims and finding that they were direct, the Florida courts denied the motion to compel arbitration. 

The Supreme Court vacated the Florida appellate decision and remanded the case for consideration of all four claims.  If any of those claims are derivative, the Court directed, the investors must be compelled to arbitrate the derivative claim(s) against KPMG.  It took the occasion to remind us all that: “when a complaint contains both arbitrable and nonarbitrable claims, the Act requires courts to ‘compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.'”


Minnesota Senator Al Franken, among others, responded to the Supreme Court’s Concepcion decision  by introducing a bill called the Arbitration Fairness Act of 2011 (S.987, also in the House as H.R. 1873) last May, which would legislatively nullify arbitration provisions in various types of agreements.  The Senate Judiciary Committee heard two hours of testimony on the bill last Thursday (Oct. 13), from speakers including Minnesota’s Attorney General (in support of the legislation), a representative of the Chamber of Commerce (opposing the legislation), an emergency room doctor (who supports the legislation and told the committee of her bad experience arbitrating a discrimination claim), a member of the non-profit Public Justice (in favor of the legislation) and a law professor (also opposing the legislation).  The remarks of each speaker are available here.

Senator Franken opened the hearing with this comment: “Personally, I’m troubled that our private arbitration system is, at least in part, eclipsing the United States Supreme Court, the highest court in the land. Perhaps today’s hearing can help us determine whether there is a sound middle ground -one where we use arbitration to the fullest fair extent, but allow our Supreme Court to fulfill its role as the true final arbiter.”

If passed, the Arbitration Fairness Act would invalidate any contractual arbitration clause that requires arbitration of an employment dispute (other than those with labor unions), consumer dispute, a claim involving constitutional rights, or a statutory discrimination claim.  The bill specifies that any dispute over whether the Arbitration Fairness Act applied would be decided by a court, even if the litigant did not raise a challenge to the arbitration provision itself (contrary to the Prima Paint decision and its progeny).   The Senate Judiciary Committee will continue to take some testimony and comments about the Act until October 20, and then the Chair will decide whether the Act will go any further.

 A similar bill was introduced in 2009 (Arbitration Fairness Act of 2009) in the U.S. House and Senate.  The 2009 bill was slightly different than the 2011 legislation: instead of invalidating arbitration clauses covering constitutional or discrimination claims, the 2009 version invalidated arbitration agreements in franchise disputes.  However, despite its 126 co-sponsors in the House and Senate, and the more liberal composition of the Congress at that time, the Arbitration Fairness Act of 2009 did not gain any traction and never made it out of its respective committees.  Unless there is significant public reaction to the Concepcion v. AT&T Mobility decision that persuades Congress to make this bill a priority for both parties, the Arbitration Fairness Act of 2011 is also unlikely to be passed.  But it may continue to raise legislative awareness of the policy issues raised by the U.S. Supreme Court’s recent rulings on arbitration.