One of the most confounding doctrines in federal arbitration jurisprudence is the severability doctrine. The U.S. Supreme Court has held, since Prima Paint in 1967, that courts must enforce arbitration clauses within contracts, even if the entire contract is invalid or unenforceable. (Most non-arbitration geeks don’t believe me when I tell them that’s the law.)
This Week In Arbitration: Jay-Z, Waiver, And “Functus Officio”
Today’s post covers three new developments from this past week. The Fifth Circuit found a defendant waived its right to arbitrate a class action; the Second Circuit found arbitrators retain power to clarify ambiguous awards; and Jay-Z found his list of potential arbitrators sorely lacking in diversity.
In Forby v. One Technologies, 2018 WL 6191349
State Supreme Courts Falling In Line On Arbitration
Despite how often I talk about whack-a-mole and the tug-of-war between the state courts and SCOTUS on arbitration, the truth is that the majority of state supreme courts follow SCOTUS’s arbitration precedent (whether holding their noses or not, we don’t know). Recent weeks have given us multiple of those pro-arbitration state court decisions to highlight
Federal Courts Do Not Appreciate Defendants Obtaining Arbitration Agreement From Active Plaintiff
In today’s post, we pick up where the 4th Circuit left off a few weeks ago — with federal circuit courts finding ways to avoid enforcing arbitration agreements that are obtained years after litigation has commenced.
In Dasher v. RBC Bank (USA), __ F3d. ___, 2018 WL 832855 (11th Cir. Feb. 13, 2018), the
Sorry, Arbitration Agreements Are Not For The Courts’ Benefit
The Supreme Court of Nebraska gave an unpleasant surprise to its trial court judges last week: they cannot enforce arbitration agreements sua sponte. Boyd v. Cook, 298 Neb. 819 (Feb. 2, 2018).
The case involved a messy shareholder dispute. A key contract to the dispute contained an arbitration provision covering “any dispute or
4th Circuit Finds Club Waived Right To Compel Arbitration Of Exotic Dancers’ Claims
In a recent opinion, the Fourth Circuit cited waiver as its basis to refuse to compel arbitration, but the result seems animated by a sense that the arbitration agreements were unenforceable. Degidio v. Crazy Horse Saloon & Restaurant, Inc., __ F.3d __, 2018 WL 456905 (4th Cir. Jan. 18, 2018).
The case involved a
Maryland's Highest Court Finds Small Claims Court Action Waived Right To Arbitrate
It is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause? The court’s answer was yes, if
New Jersey Says Non-Payment Of Arbitration Fees is Breach of Agreement
The New Jersey Supreme Court refused to allow a respondent to benefit from its refusal to pay arbitration fees in Roach v. BM Motoring, LLC, 2017 WL 931430 (NJ March 9, 2017).
First, Ms. Jackson filed a demand for arbitration against a New Jersey car dealership with the AAA. The parties’ arbitration agreement required the
Kardashians Kept Out of Arbitration (and other recent arbitration news)
Just three weeks into the year and already my pile of arbitration cases is a skyscraper! So, I will cover a lot of ground in this update.
First, the headline. Kimberly, Kourtney, and Khloe Kardashian moved to compel arbitration, although they were not signatories to the arbitration agreement. Kroma Makeup EU v. Boldface Licensing +
After Five Years In Court, West Virginia Finds Plaintiff Did Not Waive Right To Arbitrate
The highest state court in West Virginia just found that a credit card company did not waive its right to arbitrate, despite initially choosing a court forum and waiting almost five years to raise its right to arbitrate. That is a somewhat surprising decision from a court that has been repeatedly willing to buck SCOTUS