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
8th Circuit Expands Arbitral Immunity Doctrine
By Liz Kramer on
A per curiam opinion from the 8th Circuit last week highlights that even if an arbitration goes off the rails, the only remedy is vacating (or confirming) the award. The parties cannot recover from the administrator of the arbitration.
In Owens v. American Arbitration Association, Inc., 2016 WL 6818858 (8th Cir. Nov. 18, 2016),…
After Five Years In Court, West Virginia Finds Plaintiff Did Not Waive Right To Arbitrate
By Liz Kramer on
Posted in Waiver of Right to Arbitrate
The highest state court in West Virginia just found that a credit card company did not waive its right to arbitrate, despite initially choosing a court forum and waiting almost five years to raise its right to arbitrate. That is a somewhat surprising decision from a court that has been repeatedly willing to buck SCOTUS…
Arbitrator's False Credentials Are Sufficient To Vacate Award
By Liz Kramer on
Posted in Appealing Arbitration Decisions
In most circumstances, the Federal Arbitration Act requires that the losing party move to vacate an arbitration award within three months. However, the Ninth Circuit recently ruled that the three-month timeline can be tolled, especially for something as significant as the chair lying about being a licensed attorney.
In Move, Inc. v. Citigroup Global Markets…
SCOTUS Accepts Review of Kentucky Nursing Home Arbitration Case
By Liz Kramer on
Posted in Validity of Arbitration Agreement
On October 28, the Supreme Court granted a cert petition in a case in which the Kentucky Supreme Court refused to enforce arbitration agreements in nursing home agreements. (Kentucky recently topped my list of states hostile to arbitration precisely because of the language in the decision that will be reviewed…)
Louisiana Rejects Arbitration Clause In Contract Of Adhesion
By Liz Kramer on
Posted in Validity of Arbitration Agreement
The Supreme Court of Louisiana refuses to send customers who were injured while playing at Sky Zone to arbitration, finding that the arbitration clause “is adhesionary and therefore unenforceable”. Duhon v. Activelaf, LLC, __ So. 3d __, 2016 WL 6123820 (La. Oct. 19 2016); Alicea v. Activelaf, LLC, __ So. 3d __, 2016…
Administration Joins Courts In Prohibiting Arbitration In Nursing Home Admissions
By Liz Kramer on
Within the U.S. Government, the CFPB has gotten most of the attention for trying to regulate consumer arbitration. But this month, the Centers for Medicare & Medicaid Services (CMS) are bumping the CFPB out of the arbitration regulation spotlight. In particular, the CMS issued a rule that will prohibit the use of pre-dispute arbitration…
Preemption Parade: FAA Rolls Over Three State Rules
By Liz Kramer on
Posted in Validity of Arbitration Agreement
Lest anyone think that the preemption doctrine in arbitration has gone dormant, today’s cases should set the record straight. Courts have recently found the FAA preempted state rules in Pennsylvania, South Carolina, and Alabama.
The Pennsylvania Supreme Court found that one of its rules of civil procedure was preempted by the FAA in Taylor v…
Futility Trumps Waiver of Arbitration Rights in Third Circuit
By Liz Kramer on
Posted in Class Arbitration, Waiver of Right to Arbitrate
Echoing a holding already issued by four other circuits, the Third Circuit recently found that a defendant does not waive its right to arbitration by continuing to litigate in court, if the reason it failed to move to compel arbitration is that the motion would have been futile. Chassen v. Fidelity Nat’l Fin., Inc.,…
Uber Enforces Arbitration Due To Delegation Clause And Opt Out
By Liz Kramer on
The 9th Circuit’s decision to enforce the arbitration agreement in Uber’s agreements with drivers made lots of news last week. And although it includes no new principles of law, it does emphasize some principles that come up regularly in consumer and employment arbitration, so it’s worth reviewing the details.
Former drivers brought an action in…