Albert Einstein supposedly once said “you have to learn the rules of the game. And then you have to play better than anyone else.” In arbitration, that means figuring out which organizations’ rules are best suited for your arbitration clause. This post is designed to help drafters make that decision by giving a quick and
arbitration
SCOTUS Affirms Arbitrator's Decision To Allow Class Arbitration in Sutter
By Liz Kramer on
Posted in Appealing Arbitration Decisions, Class Arbitration
The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties’ agreement, her “construction holds, however good, bad, or ugly.” Oxford Health Plans LLC v. Sutter, 569 U.S. ___ (June 10, 2013). The …
Third Circuit Clarifies When Additional Discovery Must Be Allowed On Arbitrability
By Liz Kramer on
Posted in Validity of Arbitration Agreement
In an opinion that feels a bit like a report from the annual meeting of arbitration nerds, the Third Circuit last week clarified when district courts must allow discovery about arbitrability. Guidotti v. Legal Helpers Debt Resolution, LLC, ___ F.3d ___, 2013 WL 2302324 (3d Cir. May 28, 2013). Although the standard articulated is a…
The Relationship Is Governed By Multiple Agreements And Not All Require Arbitration; Must You Arbitrate?
By Liz Kramer on
Posted in Scope of Arbitration Agreement
In the past few months, two federal appellate courts have had to determine whether parties were bound to arbitrate claims that arose from relationships governed by multiple agreements, only some of which called for arbitration. While the courts reached different conclusions based on the facts, they both relied on the same critical inquiry: did the…
Federal Circuit Refuses To Enjoin International Arbitration of Patent Claims
By Liz Kramer on
Just after I posted about the awesome power of federal courts to enjoin other cases, the Federal Circuit reminds us the power is not absolute. In Sanofi-Aventis Deutschland Gmbh v. Genentech, Inc., __ F.3d __, 2013 WL 1921073 (Fed. Cir. May 10, 2013), it affirmed the district court’s decision not to enjoin a foreign…
Federal Courts Can Enjoin State Court Litigation of Arbitrable Claims
By Liz Kramer on
In a new case that reminds federal judges everywhere to sing “I’ve got the power!” like C&C Music Factory, the Fifth Circuit reiterates that federal courts can stay related state court actions if necessary to “protect or effectuate” an order compelling arbitration. American Family Life Assurance Co. of Columbus v. Biles, __ F.3d __,…
Ninth Circuit Revives California Law That Allows Plaintiffs Seeking Injunctive Relief To Avoid Arbitration
By Liz Kramer on
More than one year ago, a three-judge panel of the Ninth Circuit determined that California case law, which precluded arbitration of claims asking for public injunctive relief, was preempted by the Federal Arbitration Act. Upon rehearing the case en banc, the Court backpedaled. Kilgore v. KeyBank Nat’l Assoc., __ F.3d __,…
Seventh Circuit Is Sick Of Arbitration Appeals; Threatens "High Risk of Sanctions"
By Liz Kramer on
Posted in Appealing Arbitration Decisions
In an opinion released yesterday, the Seventh Circuit schooled appellant’s counsel first on the application of the New York Convention and Panama Convention, then on the high standard of review it applies to commercial arbitration awards, and finally expressed profound disappointment with the frequency of motions to vacate arbitration awards. “Attempts to obtain judicial review…
Study of Corporate Counsel Shows Arbitration Is Past Its "Tipping Point," Usage Declining
By Liz Kramer on
Posted in Litigation vs. Arbitration
A new article is out with more detail about how opinions among counsel for Fortune 1000 companies have changed over the last 15 years with respect to arbitration and mediation. (I posted initial info here last spring.)
By comparing results of a 1997 survey of Fortune 1,000 corporate counsel with results of a 2011 survey…
Nursing Home Cannot Compel Arbitration Under Agreement Signed By Deceased Resident's Son
By Liz Kramer on
Posted in Validity of Arbitration Agreement
The Eighth Circuit made quick work of a nursing home’s argument in favor of compelling arbitration this week. In a suit alleging negligent care of a resident, the court ruled that the arbitration agreement was not enforceable because the resident never signed it. GGNSC Omaha Oak Grove, LLC v. Payich, __ F.3d __, 2013 WL…