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
arbitration
SCOTUS Will Hear Arbitration Case in October Term
By Liz Kramer on
Just as I was beginning to worry that arbitration had fallen out of favor at the nation’s highest court… today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an appeal from a California Court of Appeals. In DIRECTV, a case pitting Kirkland &…
Beyond the Headlines Part II: What The New CFPB Report Teaches Us About Arbitration v. Litigation
By Liz Kramer on
Posted in Class Arbitration, Litigation vs. Arbitration
In my last post, I shared some of the highlights from the first half of the new CFPB Arbitration Study. This post covers the second half of the report, with juicy information gleaned from CFPB’s analysis of almost 2,000 actual consumer arbitrations and its comparison of those results to actual consumer court actions.
Arbitration…
Beyond the Headlines Part I: What The New CFPB Report Teaches Us About Arbitration Clauses
By Liz Kramer on
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…
Why The Arbitration Award Against Adrian Peterson Was Vacated
By Liz Kramer on
Posted in Appealing Arbitration Decisions
A federal judge in Minnesota today vacated the arbitration award that confirmed the NFL’s discipline of Adrian Peterson. You can read the decision here. The judge found two separate bases for vacating the award: 1) the award failed to “draw its essence” from the parties’ Collective Bargaining Agreement; and 2) the arbitrator exceeded his…
Lessons From Lance Armstrong About the Finality of Arbitration Awards
By Liz Kramer on
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…
Who Decides Whether New Claims Are Precluded By Old Arbitration? An Arbitrator, Says 2d Circuit
By Liz Kramer on
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…
2014: The Year of Arbitrator Authority
By Liz Kramer on
Posted in Year In Review
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…
First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months
By Liz Kramer on
Posted in Uncategorized, Waiver of Right to Arbitrate
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…
New Survey Dispels Common Myths About Arbitration
By Liz Kramer on
Posted in Litigation vs. Arbitration
Did you know that 87% of experienced arbitrators report *always* trying to follow applicable law in rendering an award? That will come as a surprise to many critics who like to complain that arbitrators do not adhere to established law.
The statistic comes from a survey that Prof. Thomas Stipanowich of Pepperdine University School of…