Two courts recently refused to compel arbitration because the defendants could not prove that the parties had entered into an arbitration agreement at all. Therefore, the musical accompaniment to this post is “Do Re Mi” from The Sound of Music. “Let’s start at the very beginning, a very good place to start. When you read,
arbitration
Labor Arbitrator Authorized to Void Agreement Based on Mutual Mistake
By Liz Kramer on
Posted in Appealing Arbitration Decisions
This week the Eighth Circuit confronted an interesting question: if a union member believed he failed a drug test, and therefore agreed his employer could terminate him if he tested positive again, can the arbitrator invalidate that agreement if the union member never actually failed the drug test? The appellate court answered yes, reversing the…
Two Federal Circuits Find Health Insurance Claims Outside Scope of Arbitration Clauses
By Liz Kramer on
Posted in Scope of Arbitration Agreement, Uncategorized
Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get to write about courts finding that a dispute falls outside the scope of arbitrable claims. But this week, both the Second and…
Dodd-Frank Only Precludes Arbitration of Whistleblower Actions
By Liz Kramer on
Posted in Validity of Arbitration Agreement
The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements betwen publicly-traded employers and their employees. Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir. May 5, 2014). Instead, “where the plaintiff is not pursuing Dodd-Frank whistleblower claims, neither [section of the Dodd-Frank Act] overrides the…
Third Circuit Finds Two Months of Litigation Sufficient to Waive Right to Arbitrate
By Liz Kramer on
Posted in Waiver of Right to Arbitrate
In a decision this week, the Third Circuit found two related parties had waived their right to arbitrate claims. One was no suprise — it had vigorously litigated the dispute for eleven months. But the second may have been simply guilty by association, as it had only litigated for two months. Supermedia v. Affordable Electric…
Three Lessons on Appealing from Arbitrations
By Liz Kramer on
Three decisions came out recently that offer guidance on appealing from arbitration awards. Here are three pearls of arbitration appeal wisdom, one from each case:
1. If you want to appeal from an arbitration, you must have a record. Sounds basic, right? But many parties, either due to confidence they will win in arbitration or …
Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability
By Liz Kramer on
In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin to summary judgment, but the FAA states in Section Four: “If the making of the arbitration agreement or the…
Arbitration Clauses Survive Their Contracts 99% Of The Time
By Liz Kramer on
The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it? I usually say yes, and thankfully the Sixth Circuit backed me up.
In Huffman v. The Hilltop Cos., LLC, __ F.3d __, 2014 WL 1243795 (6th Cir. March 27, 2014), a class…
Employer's Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails
By Liz Kramer on
In the past year, if I wrote about “FLSA” and “arbitration” in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the Fair Labor Standards Act. Today, however, is different. The Eleventh Circuit last week found that it was the…
SCOTUS Will Not Reconsider Fate Of Delaware's Business Arbirations; NLRB's Class Action Arbitration Decision Loses Again
By Liz Kramer on
SCOTUS announced today that it would not review the Third Circuit’s decision in Strine v. Delaware Coalition for Open Government, Inc, holding that Delaware’s Chancery Court could not offer its judges’ services as neutral arbitrators in its courtrooms, unless those arbitrations were open to the public. Therefore, that decision is final and Delaware will now…