At least in theory, mutual assent remains a cornerstone of contract law and thus of arbitration. The tricky part has become understanding what counts as mutual assent in a world where overwhelming empirical evidence, not to mention our own lived experience, demonstrates that no one reads standardized terms and conditions, including arbitration provisions buried in
Two State Courts Reject Arbitration Because Clause Lacked Administrator
This post is aimed at drafters of arbitration clauses. Because if you don’t insert an administrator for your arbitration, and don’t anticipate that the administrator may just stop providing services, your arbitration clause is dead in the water. At least, that’s the holding of two new state court cases.
Third Circuit Goes On Formation Tour — Issues Arbitration Decisions Favoring Prisoners and Pistachio Buyers
In the past week, the Third Circuit has issued two important decisions on the formation of arbitration agreements. (Sing it Beyoncé! “Okay ladies, now let’s get in formation.”) In one, a class action was allowed to proceed in court because the defendant did not obtain explicit enough agreement to the arbitration, and in another an…
Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid
A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble’s website was not enforceable. This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not enforceable because the user did not know he had any agreement with Sirius XM, let alone an arbitration…
Arbitration Agreement On Barnes & Noble's Website Not Enforceable