The Nebraska Supreme Court recently had the unenviable task of determining whether the three month time period that the FAA provides for vacating an arbitration award is a statute of limitation (subject to tolling) or is jurisdictional.  In Karo v. Nau Country Ins. Co., 2017 WL 4185426 (Neb. Sept. 22, 2017), it found that the time periods for both confirming and vacating awards are jurisdictional.

The consequence for the parties in Karo was significant.  The party who lost in arbitration waited four months to bring their petition to vacate the award.  Nevertheless, the district court vacated the award, finding the arbitrator had exceeded his powers and manifestly disregarded the law.  On appeal, however, the state’s high court took up the issue of jurisdiction.  After analyzing the statutory language, it held that “Congress intended that a party’s failure to serve notice of the application…within mandatory time limits would have jurisdictional consequences.”  Therefore, the high court found the district court’s order was void.  [How does that square with the Ninth Circuit finding the three-month period was equitably tolled for five years in this case??!]

In other arbitration news

  • The Supreme Court of Alabama agrees that just because a defendant wins a motion to compel arbitration, it does not obligate that defendant to then initiate the arbitration.  Nation v. Lydmar Revocable Trust, 2017 WL 4215891 (Ala. Sept. 22, 2017).
  • Seeing that the Senate could not be counted on to block the rule, the Chamber of Commerce and a coalition of bankers started a lawsuit challenging the CFPB’s arbitration rule.  (Absent a court injunction or Senate action, that rule takes effect in just over a month.)’
  • SCOTUS heard argument today on the big showdown over whether employees can be forced to waive their rights to class actions.  Coverage by SCOTUSblog here.

The “Summer of Arbitration” draws to a close tomorrow, if you can believe it.  (On the first day of fall, it is supposed to be 91 degrees in Minnesota.  Yikes.)  But before I close that chapter, let’s take a look at a theme that emerged in these last weeks: non-signatories losing their attempts to compel arbitration (see last post).

In one case, Google’s self-driving car project, Waymo, sued Uber (and others) for misappropriating trade secrets.  Waymo LLC v. Uber Technologies, Inc., 2017 WL 4018404 (Fed. Cir. Sept. 13, 2017).  Although no defendant had an arbitration agreement with Waymo, they moved to compel arbitration based on an arbitration agreement between Waymo and its former employee.   (The employee allegedly brought the secrets to Uber after downloading 14,000 Waymo files.  That is a lot of thumb drives.)  Defendants argued that equitable estoppel applied to compel arbitration, because the source of the claims was the employee’s breach of his employment agreement.  However, the district court  and appellate court found the complaint did not allege any breach of the employment agreement, and did not rely on or use the terms of the employment agreement as the foundation of its claims.  Therefore, Waymo did not have to abide by the terms of the arbitration clause in the employment agreement.

Non-signatories got the same result in White v. Sunoco, Inc., 2017 WL 3864616 (3d Cir. Sept. 5, 2017).  In that case, a putative class of plaintiffs sued Sunoco, alleging fraud and misrepresentations induced them to get a Sunoco Rewards Card from Citibank.  The plaintiffs alleged they were promised rewards like a five cent/gallon discount on gas purchases, but they did not receive the rewards.  Sunoco moved to compel arbitration based on the credit card agreement between the plaintiffs and Citibank.  The district court denied the motion and the Third Circuit affirmed.  Critically, it found that neither of the situations were present that support applying equitable estoppel: concerted conduct between the Sunoco and Citibank; or plaintiff’s reliance on the credit card agreement.  However, the dissenting judge found that the promotional materials should be considered an integrated agreement with the credit card, such that Sunoco was a party to the deal.

Again in In Re Henson, 2017 WL 3862458 (9th Cir. Sept. 5, 2017), the non-signatory was unable to compel arbitration.  Verizon customers brought a claim against a “middle man” for internet advertisements; that middle man had contracted with Verizon to collect data from users’ mobile devices and then deliver targeted advertisements to them.  The middle man moved to compel arbitration based on the customers’ arbitration agreement with Verizon.  The district court granted the motion based on equitable estoppel, and the plaintiff asked the court of appeals for a writ of mandamus to vacate the order.  The Ninth Circuit found the relevant factors weighed “heavily in favor” of granting the writ.  The key factors in favor of vacating the order compelling arbitration were: the fact that the plaintiff could not arbitrate in a representative or class capacity; the district court erred in finding equitable estoppel because the claims against the middle man did not rely on terms from Verizon’s customer agreement, and there were no allegations of collusion.

So, is equitable estoppel losing favor with the courts, or are defendants just trying to use it in situations where it doesn’t belong?

In two recent decisions, the Alabama Supreme Court made clear that if an arbitration clause specifies it only applies to disputes between the two parties who sign the clause, that will be strictly enforced.  No third party can enforce the arbitration agreement.

In Nissan N. Am. v. Scott, 2017 WL 3446129 (Ala. Aug. 11, 2017), a customer brought suit in court against Nissan and its dealership, after her car (a “Juke” in case you are curious) spontaneously caught fire. The purchase agreement between the customer and dealership stated, in part, that “all claims, demands, disputes . . . between them arising from…the sale” shall be settled by binding arbitration. The dealership moved to compel arbitration. The customer did not dispute her obligation to arbitrate with the dealership, but said she didn’t want to proceed in arbitration with the dealership and also in court against Nissan (a position she shifted on appeal). So, the trial court sent the whole thing to arbitration.

Unlike in the Toyota case a few years ago (a putative class action), Nissan objected to going to arbitration and appealed. The Alabama Supreme Court noted that “judicial economy . . . is not a proper basis for compelling arbitration against a nonsignatory.” Furthermore, it found the scope of the arbitration clause was limited to disputes between the dealership and the customer.

Curiously, the Alabama Supreme Court resolved a very similar case just a week before adjudicating the Juke. In Daphne Automotive, LLC v. Eastern Shore Neurology Clinic, Inc., 2017 WL 3446127 (Ala. Aug. 11, 2017), an employer sued a car dealership after the title to a car it purchased for use by an employee got bungled. In short, title was supposed to be in the employee’s name, but listing the employer as lienholder. The dealership neglected to list the employer as the lienholder.  The purchase agreement for the car was signed by the employee and provided for arbitration of disputes between the employee and the dealership.

No one would have even noticed that mistake if the employee had not gotten fired and refused to return the car. (And then the Sheriff’s office attempted to arrest the boss. Drama!) At that point, the truth came tumbling out and the employer sued the dealership. The dealership moved to compel arbitration and the trial court denied the motion. On appeal, the court found it did not need to address whether the employer was a third-party beneficiary (and therefore could enforce the arbitration clause) or even whether the doctrine of equitable estoppel applied to force arbitration. Instead, the court found the scope of the arbitration agreements themselves were “limited to disputes that arise ‘between them,’ i.e. the ‘buyer/lessor’ [employee] and the ‘dealer[ship]’”. “Stated differently, the language employed in the arbitration agreements is not broad enough to compass the plaintiffs who are nonsignatories to those agreements.”

This is an important drafting lesson.  If the arbitration clause is being placed in a consumer contract, and the consumer is likely to sue related parties, it is worth thinking about whether to broaden the scope of the arbitration clause to include those claims as well.

In a decision that is very skinny on the facts, a unanimous Nevada Supreme Court recently un-vacated a significant arbitration award in a dispute over dental franchises.  In Half Dental Franchise, LLC v. Houchin, 2017 WL 3326425 (Nev. Aug. 3, 2017), the court found the arbitrators did not exceed their power in exercising authority over non-signatories.

The dispute began when Half Dental Franchise filed an arbitration demand against Precision Dental Professionals and Robert Houchin (among others).  They asserted breaches of contract and tort claims (including tortious interference with contract and usurping corporate opportunities).  A three-arbitrator panel found that both those respondents were proper parties, and granted Half Dental about $6.7M in damage.  Houchin filed a motion to vacate the arbitration award  The district court granted the motion, finding that the arbitrators exceeded their power in finding authority over Houchin, and vacated the award.

On appeal, the Nevada Supreme Court found that the district court improperly conducted a de novo review of the arbitrator’s decision finding Houchin bound to the arbitration agreement by estoppel.  (Precision Dental was also a non-signatory to the franchise agreement that the arbitrator found was bound to arbitrate based on estoppel.)  The court noted that under Nevada’s state arbitration statutes, the district court should have asked simply whether there was “colorable justification for the outcome.”  Finding that the arbitrator’s citation to contemporaneous documents provided at least colorable justification for estoppel, the appellate court found no basis for vacatur.  The “colorable justification” standard was especially appropriate because the parties’ arbitration agreement contained a delegation clause, authorizing the arbitrator to “decide any questions relating in any way to the parties’ agreement or claimed agreement to arbitrate.”  (Otherwise, the question of whether non-signatories are bound is presumptively for a court to determine.)  For those reasons, the supreme court reversed the district court’s decision.

What’s the lesson here?  It might be that dentistry is a very competitive field, but it is also that if an award is vacated at the trial court, it’s usually worth bringing an appeal.


Last Thursday, the Second Circuit found that the arbitration agreement in Uber’s Terms of Service was conspicuous enough to be binding and enforceable.  As a result, the claims of a putative class of consumers will be dismissed unless they can show that Uber waived its right to arbitrate their claims.  Meyer v. Uber Technologies, Inc., 2017 WL 3526682 (2d Cir. Aug. 17, 2017).  [This proves my point from last week, that formation is one of the big issues this year in arbitration law.]

For those of you who still take yellow taxis, Uber is a “ride-hailing service,” where customers use an “app” on their smart phones to alert a nearby Uber driver that the customer wants a ride to a specific location. Critically to this case, when customers open an account with Uber, they see black text at the bottom of the registration screen advising that “by creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.”  The phrase “terms of service” is in blue font and hyperlinked to a page where the customer can read those terms.  The terms include an arbitration agreement that waives the right to any class or consolidated action.

A potential class of Uber customers started a lawsuit in New York alleging that Uber allows illegal price fixing.  In response, Uber first moved to dismiss for failure to state a claim.  Upon losing that motion, Uber moved to compel arbitration and the federal district court denied that motion also, finding that the parties never formed an arbitration agreement because the consumers did not meaningfully consent.

On appeal, the Second Circuit vacated and remanded.  It applied California contract law in its de novo review, and applied California’s rule that a customer who lacks actual notice of the terms of an agreement can be bound if a “reasonably prudent user would be on inquiry notice of the terms.”  In its analysis, the court noted that Uber did not use a “clickwrap” agreement, which involves consumers having to click “I agree” after being presented with a list of terms and conditions, and which is “routinely uph[e]ld” by courts.  Even so, the court concluded that the design of the registration screens were clear enough to put the plaintiff on inquiry notice of the arbitration provision.  What were those design features?

  • Hyperlinked text to terms and conditions appears right below the registration button;
  • The entire screen is visible at once (no scrolling required);
  • The screen is “uncluttered”; and
  • Although font is “small,” dark print contrasts with white background.

Therefore, the Second Circuit concluded that the named plaintiff “agreed to arbitrate his claims with Uber.”  However, the Court threw the class a bone by remanding on the question of whether Uber waived its right to arbitrate by bringing the motion to dismiss on the merits.

What’s fascinating about this opinion is not just that Uber is a famous company that is facing intriguing antitrust allegation.  No, what’s fascinating from the arbitration angle is that the Second Circuit came out on the opposite side of this same issue almost exactly one year ago in Nicosia v., Inc., 2016 WL 4473225 (Aug. 25, 2016).  The same judge wrote both opinions.

In Nicosia, the named class representative had placed an order on Amazon in 2012.  Instead of a true “clickwrap” agreement, there was simply language on the Order Page stating that “by placing your order, you agree to’s privacy notice and conditions of use.” The conditions of use were hyperlinked to the relevant terms.  Sounds pretty much the same as Uber’s setup, right?  Well, applying Washington law, the Second Circuit found that reasonable minds could differ about whether that notice was sufficiently conspicuous to be binding.  It complained that the critical sentence was in a “smaller font,” that there were too many other distracting things taking place on the order page (summary of purchase and delivery information, suggestions to try Amazon Locker, opportunity to enter gift cards and have a free trial of Amazon Prime, for example.)  There were other links on the page, in different colors and fonts.  Critically, it found “[n]othing about the’Place your order’ button alone suggests that additional terms apply, and the presentation of terms is not directly adjacent to the ‘Place your Order” button…”  Therefore, the Second Circuit reversed the district court’s dismissal based on the arbitration provision.

As the fundamental context of on-line purchases has not changed in the last year, and the Second Circuit’s recitation of California and Washington law appears pretty similar, one has to conclude that the difference between these two cases is the graphic design of the key pages.  In particular, the level of “clutter” on Amazon’s page is the primary difference-maker between these two cases.  I imagine many internet retailers will reconsider the number of fonts, colors, and promotions on their final “order” pages this next week…


This is my 290th post at ArbitrationNation and today I celebrate six years of blogging.  Woo hoo — that’s longer than most celebrity marriages!  In honor of the occasion, here are updates on six of the hottest issues in arbitration law so far this year.

  1. Agency regulation of arbitration agreements.  On the one hand, the CFPB issued a rule that will preclude financial institutions from using class action waivers in arbitration agreements.  To understand how “yuge” this is, remember that the CFPB’s initial study showed there are likely over 100 million arbitration agreements impacted by this rule.  (And there does not seem to be the necessary political willpower to stop it.)  On the other hand, agencies headed by Trump appointees have moved to roll back Obama-era consumer-friendly regulations of arbitration agreements in nursing homes and educational institutions.
  2. NLRB.  While the CFPB attacks class action waivers in the financial industry, the NLRB has been attacking those waivers in the employment context, taking the position that such waivers violate the National Labor Relations Act.  A circuit split developed, with the 6th, 7th, and 9th circuits on NLRB’s side, and the 2nd, 5th and 8th circuits siding with the employers.  The Supreme Court will hear arguments on October 2.
  3. Wholly Groundless.  When considering whether to enforce delegation clauses, some federal court have developed a carve-out for claims they think are nothing but hot air.  [Remember delegation clauses are those portions of arbitration agreements that authorize arbitrators to determine even arbitrability — whether the arbitration agreement is valid and encompasses the claims — issues usually decided by courts.]  That carve-out has been called the “wholly groundless” exception, and it is coming up with greater frequency.  Currently there is a circuit split: the 5th, 6th and federal circuits are in favor of spot-checking claims of arbitrability (e.g. Evans v. Building Materials Corp. of Am., 2017 WL 2407857 (Fed. Cir. June 5, 2017)), while the 10th and 11th Circuits believe SCOTUS’s precedent leaves no room for conducting a smell test (e.g. Jones v. Waffle House, Inc., 2017 WL 3381100 (11th Cir. Aug. 7, 2017)).
  4. Formation.  SCOTUS decided the Kindred case in May, confirming that state law on contract formation is also subject to preemption by the Federal Arbitration Act.  That was timely, given that plaintiffs appear to be placing their bets on challenging formation as the most effective way around an arbitration agreement.  They might be right.  See James v. Global Tellink Corp., 852 F.3d 262 (3d Cir. Mar. 29, 2017); Noble v. Samsung Electronics America, Inc., 2017 WL 838269 (3d Cir. March 3, 2017); King v. Bryant, 795 S.E.2d 340 (N.C. Jan. 27, 2017).
  5. Small Claims Court.  If a company starts a small claims court action to collect a debt, does that waive the company’s right to compel arbitration years later in response to a suit by the consumer?  This is a question multiple courts are facing, with differing results.  E.g., Cain v. Midland Funding, LLC, 156 A.3d 807 (Md. Mar. 24, 2017) (waiver); Hudson v. Citibank, 387 P.3d 42 (Alaska Dec. 16, 2016) (no waiver); Citibank, N.A. v. Perry, 797 S.E.2d 803 (W. Va. Nov. 10, 2016) (no waiver).  It is important because many consumer arbitration agreements exempt small claims from arbitrable claims, but may reconsider if that is considered a waiver of everything else.
  6. Statutory Preclusion.  The Federal Arbitration Act generally requires courts to enforce arbitration agreements.  But, if there is a contrary congressional command entitling the litigant to a court trial, it can override the FAA.  That issue has already come up multiple times this year, with the FAA generally winning its battles with other statutes.  E.g., McLeod v. General Mills, Inc., 854 F.3d 420 (8th Cir. Apr. 14, 2017).

Thanks to all of you for providing great feedback, leads on cases and topics, client referrals, and a warm community of fellow arbitration geeks.  I look forward to another year of blogging.

In January of 2016, SCOTUS granted review of an arbitration case from Hawaii, but summarily vacated and remanded it without analysis.  (Unless you consider “Please read DIRECTV” substantive analysis.)  Here’s the risk of that course of action: Hawaii can refuse to change its mind.

Last month, in Narayan v. The Ritz-Carlton Development Co., 2017 WL 3013022 (Haw. July 14, 2017), Hawaii affirmed its decision after considering DIRECTV.  The case related to whether purchasers of new condominiums could sue the developers over their abandonment of the project.  The developers moved to compel arbitration based on an arbitration clause within the Declaration for the condo project, because the Declaration was incorporated into the plaintiffs’ purchase agreement.  In 2015, Hawaii’s highest court found the parties had not clearly agreed to arbitrate and portions of the arbitration clause were unconscionable.

Two years later, after a forced reconsideration, the court dropped its analysis of whether the arbitration agreement was validly formed (smart decision, given that it was on the shakiest ground, and given Kindred’s statement that FAA preempts formation decisions that disfavor arbitration).  Instead, it focused exclusively on unconscionability.  It found the arbitration clause both procedurally and substantively unconscionable (noting “severe” discovery limitations), and added more state case law to support those findings.  Amusingly, it also cited to two other state supreme courts which have affirmed their arbitration decisions on unconscionability after receiving a “GVR” from SCOTUS GVR: West Virginia and Missouri. (As if to say: You let those other kids off the hook!)

Speaking of SCOTUS and arbitration, two updates of note:

  • Mark your calendars; SCOTUS will hear argument in the cases regarding whether the NLRB can preclude class waivers on October 2.  Even so, the federal appellate courts keep issuing decisions on both sides of this issue.  E.g. NLRB v. Alternative Entertainment, 2017 WL 2297620 (6th Cir. May 26, 2017) (enforcing NLRB order); Convergys Corp. v. NLRB, 2017 WL 3381432 (5th Cir. Aug. 7, 2017) (rejecting NLRB position); Logisticare Solutions Inc. v. NLRB, 2017 WL 3404648 (5th Cir. Aug. 9, 2017) (rejecting NLRB position).
  • Physicians from Florida are asking SCOTUS to grant certiorari in a case about the regulation of doctor-patient arbitration clauses.  If you know of other arbitration cases in the pipeline, let me know.
  • An employer from California is asking SCOTUS to grant certiorari in this case regarding when courts should review interim arbitration awards. [Ed note: this final bullet was not in the original post, but was added after a thoughtful reader alerted me to it.]

Class action arbitration continues to be a hot topic among the federal appellate courts this summer.

The 8th Circuit followed the lead of other circuit courts, finding that courts, not arbitrators, presumptively decide whether the parties’ arbitration agreement allows for class arbitration. Catamaran Corporation v. Towncrest Pharmacy, 2017 WL 3197622 (July 28, 2017).   In support of its decision, the court raised concerns about class arbitration, including loss of confidentiality, due process concerns for absent parties, and a concern about the lack of appellate review.  [Interesting that it didn’t cite any of CFPB’s report on this, but just cited other case law… ] Therefore, unless the parties have “clearly and unmistakably delegated” the class arbitration issue to the arbitrator, a court will decide the issue.  Furthermore, the court said that incorporating the AAA rules is not a clear and unmistakable delegation of the class arbitration decision, even though citing the AAA rules is sufficiently clear in analogous issues in regular “bilateral arbitration.”  The court remanded to the district court to determine whether there was a contractual basis for class arbitration.

Halfway across the country, the 9th Circuit held that employees could bring their claims related to a data breach as a class action in arbitration.  Varela v. Lamps Plus, Inc., 2017 WL 3309944 (Aug. 3, 2017).  The employees had first brought their class claims to federal court, and the employer moved to compel individual arbitration.  The district court found the arbitration agreement was valid, but ambiguous about whether class actions were waived.  Construing that ambiguity against the employer who drafted the agreement, the district court ordered class arbitration.  On appeal, the 9th Circuit affirmed the finding of ambiguity, sending the class to arbitration as a group.  One judge issued a two sentence dissent, noting “we should not allow Varela to enlist us in this palpable evasion of Stolt-Nielsen

The “Summer of Arbitration” continues. In this edition, I focus on four big recent cases from the Second Circuit.  One vacated an arbitrator’s certification of a class action.  A second refused to vacate an award, despite an allegation of perjury.  And the last two relate to nearly 1.7 billion dollars worth of international arbitration awards.  (Although I refuse the designation of “flyover country” for my beloved Midwest, I do have to acknowledge that the New York courts get much sexier arbitration cases than we do, and more of them.)

With all the buzz about class action waivers in arbitration clauses (and the CFPB trying to end their use in the financial industry), it is easy to forget that it is possible for class actions to go forward in arbitration.  In Jock v. Sterling Jewelers, Inc., 2017 WL 3127243 (2d Cir. July 24, 2017), the arbitrator certified a class of plaintiffs that included “absent” class members.  The district court concluded that it was “law of the case” that the arbitrator had the necessary authority to do that, based on a 2011 decision from the Second Circuit in the same matter.  However, the Second Circuit found that the district court misunderstood – it had only ruled that the arbitrator had authority to determine whether some class arbitration was permissible – but had not ruled on the question of whether individuals who had not expressly opted into the class could be part of the class.  So, this case goes back to the district court; a continuation of its seven-year class action purgatory.

In another case seeking vacatur, the Second Circuit had the opportunity to clarify when a party’s alleged fraud is sufficient to vacate an arbitration award. It held that for “fraud to be material within the meaning of Section 10(a)(1) of the FAA, petitioner must demonstrate a nexus between the alleged fraud and the decision made by the arbitrators, although petitioner need not demonstrate that the arbitrators would have reached a different result.” Odeon Capital Group, LLC v. Ackerman, __ F.3d__ (2d Cir. July 21, 2017).  In this case, that meant that the employer was not able to vacate the $1.4 M award in favor of the employee, based on the employee’s alleged perjury, because the topic of the perjury had nothing to do with the claim on which he was awarded damages.  (The general damage to his credibility was not sufficient.)

The two cases on international arbitration are better served by a blog focused on that topic. (I read enough cases as it is!  I am sticking with my exclusive arrangement with the FAA.)  But, the executive summary is that the Second Circuit declared that an opposing party deserves personal service of a petition seeking judgment on a $1.6 billion dollar award, not just ex parte proceedings under New York state law. Mobil Cerro Negro, Ltd. V. Bolivarian Republic of Venezuela, 2017 WL 2945603 (2d Cir. July 11, 2017).  It also declared that district courts should grant “significant weight to considerations of international comity” in the rare instance that the winner in arbitration properly confirms a judgment in the U.S., but the award is later nullified (well after the deadline) by courts in another nation, and the loser in arbitration makes a Rule 60 motion to vacate that judgment. Thai-lao Lignite Co. v. Government of the Lao People’s Democratic Republic, __ F.3d__ (July 20, 2017).

I declare this the Summer of Arbitration. It’s not as sexy as the Summer of Love (which is celebrating its 50th anniversary, btw, but there has to be some recognition of the avalanche of arbitration cases on my desk (to say nothing of the regulation changes).

Today, I focus on the state supreme courts. In the last few months, ten separate state high courts have issued arbitration decisions.  Many of those have addressed whether arbitrators properly disclosed relationships with the parties, their counsel and their experts.  To keep things brief, I will report each state in alphabetical order, in roughly tweet length below (140 characters, not counting citation).  Put some flowers in your hair, turn up the 60s tunes, and read on.

Alabama: Fraudulent inducement of entire contract and conditions precedent are not relevant arguments on motion to compel arbitration; both for arbitrator to decide. Rainbow Cinemas, LLC v. Consolidated Constr. Co. of Alabama, 2017 WL 2610506 (Ala. June 16, 2017).

Alabama/2: Arbitration clause not invalid, even though lender (and not consumer) could bring some claims to court. Family Security Credit Union v. Etheridge, 2017 WL 2200364 (Ala. May 19, 2017).

Arkansas: Public policy is not a valid basis for vacating arbitration awards. Kilgore v. Mullenax, 2017 Ark. 204 (June 1, 2017).

Hawai’i: Arbitrator not obligated to disclose that 1 of respondent’s experts had appeared before her previously or that second expert was counsel in mediations and arbitrations she handled. Narayan v. Assoc. of Apt Owners of Kapalua Bay Condominium, 2017 WL 2591321 (Haw. June 15, 2017) (clarifying scope of relationships requiring disclosure)

Minnesota: Courts should stay an action after compelling arbitration, not dismiss it. City of Rochester v. Kottschade, 2017 WL 2464520 (June 7, 2017).

Mississippi: Tenant’s claim of assault on apartment premises is outside scope of arb agreement in lease. Doe v. Hallmark Partners, 2017 WL 2001163 (Miss. May 11, 2017).

Nevada: Arbitrator did not exceed power by disagreeing with employee’s interpretation of CBA; colorable justification for award. Unvacated.  Washoe County School District v. White, 2017 WL 2825902 (Nev. June 29, 2017).

Nevada/2: Fact that arbitrator had worked with counsel for claimant 15 years before disclosures, and mediated cases for same counsel 7 years before, did not merit vacatur. Eagle Jet Aviation v. Milton Woods, 2017 WL 2813985 (Nev. June 27, 2017).

North Dakota: Even though arbitrator not selected by method in contract, can’t be basis for vacatur when no objection until after award. Thompson v. Lithia ND Acquisition Corp., 2017 WL 2464536 (N.D. June 7, 2017).

Texas: $21 M arb award confirmed; arbitrator unaware of trivial fact not disclosed & damages within authority. Forest Oil Corp. v. El Rucio Land & Cattle Co., 2017 WL 1541086 (Tex. Apr. 28, 2017).

Vermont: Just bc defendant is compelling arbitration, doesn’t mean a court can make it initiate the arbitration (and pay the fee). That’s plaintiff’s job.  –Hermitage Inn Real Estate Holding Co. v. Extreme Contracting, 2017 WL 2391725 (Vt. June 2, 2017) (reversing default judgment for plaintiff).

Virgin Islands: Loser cannot vacate award based on lack of arb agmt, when it never raised issue in court and first raised on final day of arb hearing. Bashiti v. Tutu Park, 2017 WL 2333809 (May 26, 2017). [I can count this as a state, right??]

These decisions show that arbitrator disclosures are popular bases for attempting to vacate arbitration awards right now.  As those cases bubble up, state high courts are clarifying the narrow set of relationships that must be disclosed as well as those which will form a valid basis for objection.