In the latest serve in a four-year ping-pong match between it and the Supreme Court, the Second Circuit has re-re-affirmed its holding that American Express may not compel arbitration of antitrust claims by a class of national merchants. In Re Am. Express Merchants’ Litig., ___ F.3d ___, 2012 WL 284518 (2d Cir. Feb. 1,
Third Circuit Says "Bring On De-Funct!"
In a 2-1 decision, the Third Circuit held last week that the arbitration agreement in a personal computer purchase was valid, despite its mandate of a defunct arbitral forum. Its decision, Khan v. Dell Inc., ___ F.3d ___, 2012 WL 163899 (3d Cir. Jan. 20, 2012), is in line with the decision of the
CompuCredit Corp. v. Greenwood: 8-1 SCOTUS Decision Finds Credit Repair Organizations Act Does Not Preclude Arbitration
In a very narrow decision today, the U.S. Supreme Court found that the Credit Repair Organizations Act (CROA) does not preclude the arbitration of consumer suits alleging violations of that Act. CompuCredit Corp. v. Greenwood, 565 U.S. ___ (2012). The 8-1 decision was written by (who else?) Justice Scalia, with a concurring opinion filed
South Dakota Disagrees with Illinois and Pennsylvania, Finding Choice of Defunct Arbitration Rules is Not "Integral" To Agreement
Earlier in 2011, courts in both Pennsylvania and Illinois issued decisions finding that when a consumer’s arbitration agreement called for the National Arbitration Forum (NAF) to administer the arbitration, but the NAF no longer administered consumer disputes, the arbitration agreements were unenforceable. Those courts found the parties’ choice of NAF was “integral” to the arbitration
It's A Wrap: 2011 in Arbitration Law
As we pile up the cardboard boxes that held holiday gifts for the recycling truck and select our new year’s resolutions for 2012, here are a few reflections on the last twelve months in arbitration law. I would summarize it as another year where the U.S. Supreme Court was playing whack-a-mole, trying to tamp
Severability Squared: Can Invalid Provisions Within an Arbitration Agreement Be Severed?
Do you remember the moment when you first encountered the concept of arbitrating arbitrability? Just the phrase is mind-bending! It took me a while to wrap my head around the idea that parties could separately agree to arbitrate the question of whether they really had to arbitrate. Well, here’s a similar mind-bender: how does state
Twin Decisions From Florida Supreme Court Throw One-Two Punch at Nursing-Home Arbitration Agreements
The Supreme Court of Florida has moxie. It issued two new decisions the day before Thanksgiving which go out of their way to sidestep and distinguish the U.S. Supreme Court’s decision in Rent-A-Center, West v. Jackson, 130 S. Ct. 2772 (2010), in order to find that nursing home residents may not be compelled to
Second Circuit Finds Courts Have Power To Enjoin Arbitration In Limited Circumstances
The Second Circuit just held that a federal court has the power to enjoin an ongoing arbitration. In re Am. Express Fin. Advisors Sec. Litig., ___ F.3d ___, 2011 WL 5222784 (2nd Cir. 2011). While many litigants would no doubt like a federal court to enjoin their arbitrations — especially when arbitrators refuse to
You Don't Have To Arbitrate Your Dispute With The Moving Company
Just in time to participate in Arbitration Nation’s (unplanned) series on legislative nullification of arbitration agreements, the Ninth Circuit Court of Appeals ruled last week that the Carmack Amendment nullifies pre-dispute arbitration agreements in interstate shipment contracts. Smallwood v. Allied Van Lines, Inc., ___ F.3d ___, 2011 WL 4927404 (9th Cir. 2011). The Ninth Circuit
"I'm Good Enough, I'm Smart Enough, And Dog-gone It" I Don't Like Mandatory Arbitration
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