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 an arbitration law standpoint, is that SCA essentially re-opened an arbitration that it had lost with Armstrong in 2005 to obtain this new award.

The general rule of thumb is that arbitrators lose jurisdiction once they issue the final award.  Other than the short period within which parties may request that arbitrators correct a clerical or computational error under the arbitral rules (AAA gives 20 days; JAMS gives only 7), the arbitrators turn into pumpkins for all practical purposes after the final award is issued.  The arbitral rules do not have any equivalent to Rule 60, which in state and federal courts allows a judge to re-do a judgment or order based on newly discovered evidence, fraud, or mistake.  (But even Rule 60 sets a deadline of one year after the judgment is entered to request that the judgment be vacated…)

There is even a fancy Latin name for the reason that arbitrators turn into pumpkins after they issue final awards: functus officio.  The policy is that arbitration awards are suppoed to bring finality, and we wouldn’t want arbitrators revisiting awards based on improper or ex parte information.  However, one of my favorite arbitration resources, Domke on Arbitration, suggests that there are now so many exceptions to the functus officio doctrine that they just about swallow the rule.  Courts have allowed arbitrators to revisit their awards to correct mistakes, to rule on an issue that was submitted but not decided, to clarify an ambiguity, and always, if the parties contractually authorize the same panel to hear a new issue.

That last exception explains how the SCA got a second bite at its arbitration with Armstrong.  SCA’s petition to confirm the new arbitration award gives some important additional facts about what happened at the 2005 arbitration.  Before the arbitration concluded, SCA and Armstrong entered into a settlement agreement requiring SCA to pay Armstrong $7.5 Million.  That settlement agreement specified that the same panel of three arbitrators who heard the 2005 evidence would have “exclusive jurisdiction over” “any dispute or controversy [between the parties] arising under or in connection with” the settlement agreement.

After Armstrong admitted to Oprah Winfrey that he lied in his arbitration with SCA, SCA pursued two new claims with the three original arbitrators: sanctions for perjury and forfeiture of prize money that SCA had paid to Armstrong.  Armstrong objected that the initial panel lacked authority to reconvene, but a majority of the panel disagreed.  After hearing the evidence, a majority of the panel awarded SCA $10 million in sanctions against Armstrong.

Is there any lesson in this highly unusual tale for the run-of-the-mill arbitration?  Of course.  In general, parties and their advocates have one shot at getting the right result in arbitration, so every effort should be made to uncover important evidence and submit it to the panel.  But, in the circumstance where one party is convinced that material evidence remains hidden, why not find a way to make sure the same arbitrator(s) could hear that evidence in the future?  The settlement agreement between Armstrong and SCA is a good vehicle for that.

[Thanks to Karl Bayer and his Disputing Blog for alerting me to this award.]

Post Script: I received great advice from readers that I want to pass along to other advocates.  A few readers noted that the case law authorizing arbitrators to sanction parties is still developing, so attorneys who are involved in drafting arbitration agreements should consider granting the arbitrator specific authority to punish bad behavior.  Additionally, another reader noted that if the parties agree to have the same panel hear any future disputes, they would be wise to consider what happens if one of the panelists is no longer available.  Otherwise, a party who later refused to arbitrate could say that the precise makeup of the panel was integral to the parties’ agreement, such that the inability of any of the arbitrators to serve destroys the agreement to arbitrate.

“When an arbitration goes an opponent’s way on the basis of questionable contract interpretation, parties often seek refuge in [Section] 10(a)(4).  But the Supreme Court has made clear that district courts’ review of arbitrators’ awards under [that Section] is limited to the ‘sole question… of whether the arbitrator (even arguably) interpreted the parties contract.'”

Those two sentences of the Fifth Circuit’s recent opinion in BNSF Railway Co. v. Alstom Transportation, Inc., __F.3d__, 2015 WL 507874 (5th Cir. Feb. 5, 2015), are indicative not only of the result of the opinion, but also of the Court’s attempt to educate the district courts within its reach.  You almost get the sense the Court is saying “if I have to say this one more time…”

The Northern District of Texas had vacated an arbitration award.  The arbitrators found, in part, that BNSF breached its covenant of good faith and fair dealing when it exercised its termination rights under the parties’ agreement.  The agreement gave BNSF the right to terminate without cause, at any time.  The district court could not see how the arbitrator avoided that contractual language to find against BNSF, and therefore ruled that the arbitrators had exceeded their power within the meaning of Section 10(a)(4) of the FAA.

The Fifth Circuit disagreed.  For the benefit of any other district courts that had mis-understood the meaning of Sutter, the Fifth Circuit took this opportunity to give a “how to” tutorial on evaluating motions to vacate arbitration awards.  As a start, the Court notes that “district courts should consult the arbitrator’s award itself” and look for textual evidence that the arbitrator interpreted the contract.  To be even more helpful, the Court suggests that evidence may be found in the arbitrator’s definition of her task, or citations to the contract, or analysis of the contract, or conclusions that “are framed in terms of the contract’s meaning.”  Because in this case, the arbitrators framed their analysis as an interpretation of the “without cause” provision of the contract, the Fifth Circuit found reversal required and reinstated the arbitration award.

[The Fifth Circuit also easily tossed aside the railroad’s argument that the award should be vacated under the Texas or Illinois state arbitration acts.  It cited case law that the FAA rules apply unless there is clear and unambiguous contractual language selecting state arbitration acts.]

Because of the strong federal policy favoring arbitration, and cases providing that any doubt about the scope of an arbitration agreement must be resolved in favor of arbitration, it is uncommon to find a decision holding that the parties’ claims are not within the scope of their arbitration agreement.  But, the Supreme Court of Alabama held exactly that in Porter v. Williamson, __ So.3d__, 2015 WL 403081 (Ala. Jan. 30, 2015).

Porter involves a family drama in which two brothers owned investment companies, hired their nephew to work for them, and then made him a shareholder.  Twenty years later, they terminated the nephew and the litigation ensued.  The nephew claimed: 1)  specific performance of provisions of the shareholders agreement, requiring his uncles to buy his shares; 2) alternatively, rescission of the shareholders agreement; 3) misrepresentation; and 4) conversion.  The shareholder agreement’s arbitration clause said “Except for items of specific performance referred to above, any controversy or claim arising out of, resulting from or relating to this agreement shall be settled by arbitration in Birmingham, Alabama, in accordance with the Commercial Arbitration Rules of the [AAA]….”  The previous paragraph, entitled “specific performance,” allowed controversies “concerning the purchase or sale of” the shares of common stock to be heard in “a court of equity.”

The uncles moved to compel arbitration and the trial court denied it in full.  The Alabama Supreme Court took a more nuanced view, finding that the nephew’s claims 2-4 (rescission, misrepresentation, and conversion) were arbitrable.  But the claims “for specific performance and injunctive relief are not within the scope of the arbitration provision,” because they fell within the agreement’s carve-out for specific performance relating to buying and selling shares.  The court  cited SCOTUS’s Cocchi case for the proposition that “if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation.”

Interestingly, there is no discussion in this case that the arbitrators should have decided the scope question based on the AAA rules (which give the arbitrator authority to determine his/her own jurisdiction).  Either the uncles did not see that issue, or they chose not to raise it, hoping that the court would find it inefficient to send some, but not all, claims to arbitration, and therefore keep all the claims in court.  Also interesting is the question: what happens next?  Usually court claims are stayed pending arbitration, but in this instance, it is more logical for the court claim to go first, as some of the other claims are pled in the alternative.

Want more state court arbitration news?  Of course you do.  Here are two recent state high court decisions, both pro-arbitration:

  • The Supreme Court of California “un-vacated” an arbitration award against an employee in Richey v. AutoNation, Inc., __ P.3d __, 2015 WL 363177 (Cal. Jan. 29, 2015).  Applying the state’s arbitration act, the Court rejected the idea that the arbitrator had exceeded his power by accepting a defense not available in California. The court noted the arbitrator found other, independent grounds for the result.
  • The Supreme Court of Louisiana affirmed an arbitration award in Mack Energy Co. v. Expert Oil & Gas, LLC, __ So. 3d __, 2015 WL 403209 (La. Jan. 28, 2015) (also applying the state arbitration act).  The losing party had argued that the arbitrator exceeded his power by giving an award outside the scope of the arbitration and by ordering the production of documents during arbitration.  The court disagreed.

 

It is generally accepted that courts may only engage in the very front and very back end of an arbitration. At the outset, courts may determine whether the parties agreed to arbitrate the dispute, and at the end, courts may determine if the arbitration met the basic fairness requirements of the Federal Arbitration Act.  However, in a 1973 case the Ninth Circuit had indicated there may be some “extreme” circumstances where mid-arbitration intervention was appropriate.  This week, the Ninth Circuit reversed a district court’s attempt to characterize an arbitration as one of those “extreme” cases and nearly disavowed its 1973 ruling creating the loophole.

In Sussex v. U.S. Dist. Ct. for D. Nevada, __ F.3d __, 2015 WL 327558 (9th Cir. Jan. 27, 2015), the underlying issue was whether the arbitrator had a disqualifying conflict of interest.  A single arbitrator was hearing three similar actions by condominium owners against the developer.  During the course of his service, the arbitrator founded a company to invest in “high-value, high-probability legal claims.”  The arbitrator did not disclose that investment activity, but the developer discovered it and moved the AAA to disqualify the arbitrator.  The AAA denied the developer’s request after the arbitrator said his investment company was “dormant”.

Undeterred, the developer moved the federal district court to disqualify the arbitrator and stay the arbitration.  The district court granted the motion.  It relied on Aerojet-General Corp. v. Am. Arbitration Ass’n, 478 F.2d 248 (9th Cir. 1973), which allowed for the possibility that court intervention in ongoing arbitrations may be appropriate in “extreme cases.”  The district court reasoned that the arbitrations were in their early stages, and that the developer would likely be able to vacate any resulting arbitration award based on evident partiality.  The partiality came from the potential that a large financial award for the condominium owners could help the arbitrator promote his company.

On appeal, the Ninth Circuit issued a writ of mandamus, instructing the district court to vacate its disqualification of the arbitrator.  It noted that no court after Aerojet had approved of a mid-arbitration intervention and that a majority of circuit courts “expressly preclude” such intervention.  It found that the district court had clearly erred in its arbitration analysis.  In particular, the district court erred in predicting any award from the arbitrator would be vacated due to evident partiality.  Because there was no “direct financial connection” between the arbitrator and any party or law firm involved, and instead only an attenuated and potential relationship, the Ninth Circuit found insufficient grounds for vacatur.

More interesting, the court found that even if the connection was sufficient to establish evident partiality, that would not be the type of “extreme case” envisioned in Aerojet.  The increased cost and delay associated with a vacated arbitration award are “manifestly inadequate to justify a mid-arbitration intervention.”

This is a hard arbitration pill to swallow.  If a party is convinced that it has a solid basis under the narrow provisions of FAA Section 10 to vacate the arbitration award in its proceeding, and the arbitral venue does not eradicate that basis, this case stands for the proposition that the party has to simply continue through the end of the arbitration, go through the process of vacating the award (and the likely appeal), and then decide whether it wants to re-arbitrate the dispute.  The result drives home the point that the point of the FAA is not efficient resolution of disputes, but enforcing arbitration agreements.

We all know that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) apply with equal force to both arbitration awards and court orders.  But, if your adversary brings new claims that you believe have already been determined in arbitration, where do you go to shut down those new claims — court or arbitration?  A recent decision from the Second Circuit clarifies that arguments about issue or claim preclusion should generally be made in arbitration.  Citigroup, Inc. v. Abu Dhabi Investment Authority, __ F.3d__, 2015 WL 161745 (2d Cir. Jan. 14, 2015).

In Citigroup, the parties’ investment agreement provided that “any dispute that arises out of or relates to” the agreement will be decided in AAA arbitration.  The Abu Dhabi Investment Authority (ADIA) asserted claims against Citigroup in arbitration, and after a full hearing, the panel ruled in favor of Citigroup.  ADIA moved to vacate the award, but the Southern District of New York found no “manifest disregard” and confirmed the award.  At that point, ADIA did two things.  It appealed the confirmation to the Second Circuit and served Citigroup with a new arbitration demand, asserting some of the same claims it asserted in the first arbitration.  (Gutsy move.)

At that point, Citigroup started a new federal action, seeking to enjoin the second arbitration under the All Writs Act (or the Declaratory Judgment Act).  ADIA moved to dismiss the complaint and compel arbitration.  The district court compelled arbitration.

The Second Circuit affirmed, but after some soul-searching.  It had to weigh the FAA’s policy favoring arbitration on the one hand, against its concern for “the integrity of federal judgments.”  It also had to address its own 2011 ruling , which enjoined a pending arbitration because the claims had been settled and the settlement implementation remained under the district court’s exclusive authority.

In the end, the Second Circuit appears to have concluded that agreeing to enjoin arbitrations in situations like this would be opening a Pandora’s Box.  “The FAA’s policy favoring arbitration and our precedents interpreting that policy indicate that it is the arbitrators, not the federal courts, who ordinarily should determine the claim-preclusive effect of a federal judgment that confirms an arbitration award.”  The court distinguished its 2011 ruling by noting that in Citigroup, the district court did not retain any jurisdiction over the judgment confirming the arbitration award.  It will be for a new AAA panel to determine whether ADIA’s claims are precluded by the previous arbitration award.

Today, the U.S. Supreme Court denied the petition for certiorari in the Iskanian case from the California Supreme Court.  In doing so, SCOTUS allowed one of the most interesting Federal Arbitration Act interpretations in recent years to stand.  As you may recall, the decision held that the Federal Arbitration Act did not apply to labor code enforcement lawsuits brought by employees pursuant to California’s Private Attorneys General Act.  The California court reasoned that those claims are really state enforcement actions, without any arbitration agreement governing the claims.  This opens up a new line of argument for putative class actions — can they piggyback on Iskanian and argue that their lawsuit is properly viewed as public enforcement of a statute and therefore the arbitration agreement does not apply?  It will be interesting to see if plaintiffs in other states make use of this decision.

[At least one arbitration case still has a certiorari petition pending: Opalinski.]

 

The Second Circuit reversed a district court’s vacatur of an arbitration award this week, finding that the arbitration panel did not manifestly disregard the law when it refused the respondent’s reading of a state statute.  Sotheby’s Int’l Realty, Inc. v. Relocation Group, LLC, 2015 WL 64265 (2d Cir. Jan. 6, 2015).  In doing so, the Second Circuit suggests that 2014’s theme (arbitrator authority) is continuing into the new year.

The dispute in Sotheby’s was between two realty firms over their commissions from the sale of a $16M property in Greenwich, Connecticut. (See Sotheby’s Int’l Realty, Inc. v. Relocation Group, LLC, 987 F. Supp. 2d 157 (D. Conn. 2013).)  A three-member arbitration panel awarded the Relocation Group the commission it sought.  In accordance with the applicable arbitration rules, the panel offered no rationale for its decision.

The federal district court vacated the arbitration award, finding that the arbitration panel had manifestly disregarded the law.  It ruled that the Relocation Group’s commission was precluded by a Connecticut statute requiring brokers to fulfill certain conditions before recovering commissions.  Because the district court concluded the law was clear, and the arbitration panel knew of it but improperly applied it, it vacated the award.

The Second Circuit reversed, un-vacating the arbitration award.  In just two pages, the appellate court concluded that the district court did not properly apply the test for manifest disregard.  In particular, the district court was wrong in finding the state statute “clear”, and it did not look for any colorable justification for the panel’s decision.  [The three part test for manifest disregard in the Second Circuit is: whether the law that was allegedly ignored was clear; whether the arbitrators erred in their application of the law, thereby affecting the outcome; and whether the arbitrators knew of the law’s existence.]

Two things about this opinion are particularly interesting.  First, although the Second Circuit continues to assert “manifest disregard” as a viable basis for vacating arbitration awards under the FAA after Hall Street, I can find no opinion where the Second Circuit has actually found an arbitrator manifestly disregarded the law.  (Despite the issue coming up at least 30 times since 2008.)  Is that because it is such a high standard, or because the Second Circuit does not want to give SCOTUS a test case for whether manifest disregard survives??  Second, as previously noted, it is very hard to vacate an award without any rationale behind it.

A lot of interesting arbitration law was made this year, on topics from validity to vacatur, but the banner issue was arbitrator authority.  SCOTUS announced that theme for the year with its BG Group decision in March and federal and state courts around the country ran with it.  [Warning: this post is a doozy.  Get comfortable.  Like my cat in the picture.]

Arbitrator Authority

What did we learn about arbitrator authority?  Well, SCOTUS reminded us in BG Group PLC v. Republic of Argentina that arbitrators presumptively have authority to decide the meaning and applicability of contractual conditions precedent. That is true even when the contract states those conditions precedent must be completed before arbitration may proceed.  Why is that important?  Well, first, parties need to know in what forum to make a motion to dismiss, and second, when the arbitrator decides an issue within his or her authority, that decision is entitled to the full deference of the FAA.  Therefore, the arbitrator’s decision in BG Group to excuse a party’s non-compliance with unreasonable conditions precedent was confirmed.

Following suit, federal circuit courts held that arbitrators have authority to: determine the timeliness of an arbitration demand (5th Cir – Why Nada Cruz); determine whether a non-signatory had to arbitrate, based on incorporated AAA rules (8th Cir – Eckert/Wordell); determine whether claims fall within the scope of the parties’ arbitration agreement, based on incorporated AAA rules (11th Cir. —U.S. Nutraceuticals); determine whether a subcontractor was properly licensed, based on a broadly worded agreement (despite arguments that only a state agency had that jurisdiction, 10th Cir — Hungry Horse LLC); void an agreement based on mutual mistake (8th Cir – Assoc. Elec. Coop.); and determine that third parties benefited from an agreement, despite language prohibiting third parties from having rights (11th Cir —Southern Mills, Inc.).

In turn, state high courts held that arbitrators have authority to: issue severe sanctions for fabricating evidence, based on incorporated AAA rules (Minnesota- Seagate Technology LLC); grant dispositive motions and disregard applicable state law (Alabama — Tucker); and determine arbitrability, based on the parties’ agreement (Hawaii–Hawaii State Teachers Assoc.).

There were also many, many decisions this year confirming arbitration awards, which can be seen as a subset of “arbitrator authority” decisions.  Most surprising this year was the volume of arbitration awards that were un-vacated, in other words, an appellate court confirmed the arbitration award after a lower court had vacated it.  At least five state supreme court decisions fit in that category. (Three I already blogged about, Delaware, Florida, and Minnesota, and two other labor decisions I did not blog about from Connecticut (Town of Stratford) and Montana  (City of Livingston).)  And at least five federal circuit court decisions also had to un-vacate arbitration awards — the Second Circuit, the Sixth Circuit, the Tenth Circuit, the Eighth Circuit, and the Fourth Circuit (in Washington Gas Light Co.).  These ten decisions confirm the extreme deference that the FAA grants to arbitrators’ decisions within their authority.

While arbitrator authority was this year’s hot topic, with much of that authority coming from incorporated AAA rules, some of the topics from past years continued to trend.  For example…

Validity

2014 produced some novel challenges to the validity of arbitration agreements.  My personal favorites were the two federal circuit courts that refused to enforce identical agreements calling for arbitration before a Native American tribe that does not actually conduct arbitration–finding the agreements unavailable and illusory.

Another notable validity decision was Missouri’s refusal to enforce an arbitration clause, in part because it was illusory and because continued at-will employment was insufficient consideration for the arbitration agreement.  In making those arguments, the plaintiff followed the current best bet for avoiding an arbitration clause — attack the formation of the clause (offer, acceptance, consideration, peppercorns) and use the word “illusory.”

Formation

Speaking of formation, there were a number of cases this year that confronted whether an arbitration agreement could be enforced if it was simply on a website, provided after the fact, or in an agreement that was incorporated by reference.   Recall the website arbitration agreements that failed (Barnes & Noble, General Mills), along with the similar failure of a “shrinkwrap” type arbitration agreement sent after the purchase, where the customer lacked reasonable notice (Sirius XM)?  With respect to incorporated manuals or agreements containing arbitration clauses, those were not enforced in this Fifth Circuit decision or this Fifth Circuit decision, but were enforced in this Eleventh Circuit decision.  Finally, the D.C. Court of Appeals found that clients of a D.C. law firm could compel arbitration of a fee dispute with the law firm, although the parties had no written arbitration agreement, because the D.C. bar rules obligate attorneys to arbitrate.

In the sub-category of states refusing to compel arbitration ofwrongful death cases against nursing homes, the Supreme Court of Oklahoma issued two decisions (Johnson and Boler) finding that arbitration agreements signed by attorneys-in-fact of the resident were not enforceable or binding.  (At least four state courts issued similar decisions in 2013.)

Preemption

Although the flood of post-Concepcion preemption decisions has subsided, there were a few notable decisions this year.  In CarMax Auto Superstores, SCOTUS asked California to take a very hard look at whether its Gentry line of cases, finding class actions necessary for effective vindication of rights, was preempted after 2013’s AmEx decision.  Three months later, California did just that, finding Gentry preempted.  And in THI of New Mexico, the Tenth Circuit found New Mexico’s rule that arbitration clauses must be mutual was preempted.

At least three state courts proactively declared that their arbitration decisions were not preempted by federal law. In Iskanian, California said that plaintiffs’ ability to bring private attorney general claims on a representative basis cannot be waived, even via an arbitration agreement, and the FAA does not preempt that result because the FAA does not apply to claims made by the state.  (See final paragraph below for potential next chapter on Iskanian.)  In Alltel, Arkansas found a consumer arbitration agreement unenforceable because it lacked mutuality, and said the result was not preempted because mutuality is a requirement of all contracts.  (Note the opposite result in THI above.)  Similarly in Atalese, New Jersey found a consumer arbitration agreement unenforceable because it did not clearly advise consumers that they were giving up their rights to a jury trial, and said the outcome was not preempted because the rule applies to all New Jersey contracts.

Vacatur
I found four significant decisions vacating arbitration awards this year.  They showed that arbitration awards can be vacated if the arbitrators are impartial when the agreement calls for partial arbitrators (Texas) , that arbitration awards can be vacated if the arbitrator does not fully disclose significant relationships with the law firm representing one of the parties (also Texas),  and that arbitration awards can be vacated if the arbitrators grant a remedy that is precluded by the parties’ agreement (South Dakota and Ohio).

And for 2015…

What can we look forward to in 2015?  In their conference on January 9, 2015, SCOTUS has two arbitration cases on deck.  One is the California Supreme Court decision in Iskanian, presenting interesting preemption issues, and the second is a case presenting the issue of whether availability of class arbitration is a gateway issues that is presumptively for courts to decide (Opalinksi v. Robert Half Int’l.).

I hope this long post alleviates some of my guilt for posting less frequently in 2014 than in previous years…  Here’s to a 2015 with well-reasoned arbitration decisions that help clarify some of the still-thorny topics arising under the FAA!  And me having more time to write about them!  Happy New Year.

We haven’t had a good waiver case in a while.  The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either).  It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court in the first place, but by waiting nine months to compel arbitration, thereby seeming to “use [] an arbitration clause as a parachute when judicial winds blow unfavorably.”

In Joca-Roca Real Estate, LLC v. Brennan, __ F.3d __, 2014 WL 6737103 (1st Cir. Dec. 1. 2014), the plaintiff alleged fraud and breach of contract stemming from an asset purchase agreement.  The agreement required arbitration.  The parties conducted significant discovery, involved the court in discovery disputes, and were scheduled for trial on February 3, 2014.  On December 6, 2013, shortly before the summary judgment deadline, the plaintiff moved to stay proceedings pending arbitration.  (First big word: the court says the plaintiff did not explain its “cunctation” in invoking the arbitration provision.)  The district court found the plaintiff had waived its right to seek arbitration.

The First Circuit affirmed.  It reiterated the rule in its circuit that mere delay in seeking arbitration is insufficient to find waiver, there must be prejudice to the non-moving party.  To analyze prejudice, the court reviews a “salmagundi” of factors.  But the court admits the prejudice requirement is “tame” and can be inferred from a long delay accompanied by significant activity in the courts. In this case, the court focused on: the fact that the parties engaged in significant discovery, that the plaintiff waited until close to trial to seek arbitration, and that the change in forum would have delayed final disposition of the case and “nullify one of the primary benefits of arbitration.”

So we know at least two things: first, if you’re appearing before the First Circuit, you should use some fifty cent words in your briefs; and second, if you are on the eve of trial, it is probably too late to compel arbitration of the claim.

Do you remember Balki’s Dance of Joy from the TV show Perfect Strangers?  That is what I am doing today.  Editors of the ABA Journal announced yesterday they have selected ArbitrationNation as one of the top 100 best blogs for a legal audience for the third straight year (out of 4,000+ legal blogs).  I am very thankful to the many readers who nominated this blog.  ArbitrationNation is the only blog devoted to arbitration law on the list and one of only two blogs authored by Minnesota attorneys (the other is www.duetsblog.com).

Now that the editors have made their picks, the ABA Journal is asking readers to weigh in and vote on their favorites in each of the 8th Annual Blawg 100’s 13 categories. If you feel so inclined, click here to register and vote. (ArbitrationNation is in the “Litigation” subcategory.)  Voting ends at close of business on Dec. 19, 2014.

“No longer to be confused as a fad or the realm of the tech-savvy, law blogs are rooted in the legal media landscape,” ABA Journal Editor and Publisher Allen Pusey said. “While traditional media sources often break news, law blogs dive deeper to offer insight into what the news means for clients, the legal profession and the public. They are sometimes-irreverent watchdogs of the bench and bar. And the ones on our list are well-written and, more often than not, entertaining.”

If you want to know how I ended up blogging and why I am glad I did, here is a piece I wrote for an ABA publication on that subject.

Finally, if the Blawg 100 brought you here for the first time, and you are wondering what Arbitration Nation is all about, here are some classic posts to check out: The Only Five Good Reasons to Put Arbitration in your Contract; Recipe for the Best Arbitration Agreement Ever; and Five Tips for State Courts Considering Whether to Vacate Arbitration Awards.

Happy Thanksgiving everyone!