If you ever wanted an “Exhibit A” for how drafting arbitration agreement(s) could go very, very wrong, the Tenth Circuit has just provided it. In Ragab v. Howard, __ F.3d __, 2016 WL 6832870 (10th Nov. 21, 2016), a majority of the panel concluded that because the parties had six differing arbitration agreements,
Arbitration is having its 15 minutes of fame. Thanks to a series in the New York Times, my inbox is full of links to the articles, questions about the information, and fascinating commentary. [Next time I am in Oakland, I am totally having the “Scalia” cocktail at Italian Colors.] With the far-reaching audience of the
One way to challenge the very existence of an agreement to arbitrate is to say that the parties’ contract said nothing about arbitration and did not validly incorporate any other document calling for arbitration. Oklahoma and Alabama have recently come out at opposite ends of the spectrum in terms of what kind of notice must
Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it prohibited both discovery and punitive damages. Narayan v. The Ritz-Carlton Dev. Co., Inc., __ P.3d __, 2015 WL
If you won your arbitration, it is vexing to have to spend many thousands more in attorneys’ fees opposing a motion to vacate the arbitration award. (That is especially true if you signed up for arbitration thinking it was faster and avoided appeals.) But, can you ask the court to award you the attorneys’ fees
Almost two years ago in American Express Co. v. Italian Colors, SCOTUS significantly narrowed, but did not overrule, the “effective vindication” doctrine, which allows plaintiffs to invalidate an arbitration agreement if it precludes them from effectively vindicating their federal statutory rights. A decision today from the Eighth Circuit shows just how difficult it is
What’s one way to derail a potentially large collective action about Fair Labor Standards Act violations? To implement a new arbitration policy within days, thereby ensuring that your current employees cannot join the court case. At least, that was the successful tactic used by a Chicago restaurant recently.
In Conners v. Gusano’s Chicago Style Pizzeria,
The Consumer Financial Protection Bureau released an “Arbitration Study” exceeding 700 pages to Congress this week. You have likely heard the headlines – most commentators assume that the CFPB will use the study to support an effort to restrict or regulate the use of “pre-dispute” arbitration in financial transactions. But, let’s not get ahead of
Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to Missouri’s recent ruling). Alltel Corp. v. Rosenow, 2014 WL 4656609 (Ark. Sept. 18, 2014). New Jersey grounded its decision on
A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply? The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass the parties’ dispute,