Of all the federal circuit courts, I was not expecting the 7th Circuit to venture out on a limb to support the NLRB’s interpretation of the National Labor Relations Act (NLRA) as precluding class arbitration waivers. After all, the 7th Circuit gets affirmed more than other circuit courts by SCOTUS, earning it a reputation for
compel arbitration
"Older Workers" Do Not Have To Arbitrate Statutory Employment Claim
Arbitration is having its 15 minutes of fame. Thanks to a series in the New York Times, my inbox is full of links to the articles, questions about the information, and fascinating commentary. [Next time I am in Oakland, I am totally having the “Scalia” cocktail at Italian Colors.] With the far-reaching audience of the…
State Courts Disagree About Incorporating Arbitration Agreements By Reference (Post #200!)
One way to challenge the very existence of an agreement to arbitrate is to say that the parties’ contract said nothing about arbitration and did not validly incorporate any other document calling for arbitration. Oklahoma and Alabama have recently come out at opposite ends of the spectrum in terms of what kind of notice must…
"Harmonizing" Contract Language Leads Two Circuit Courts To Deny Arbitration
Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts “harmonize” language from different parts of an agreement or from multiple agreements.
The decision from the Eighth Circuit was a pretty easy one. The parties’ contract…
Appellate Courts Saving Arbitration Agreements Right and Left
In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration. The courts seem to be saying to defendants with arbitration agreements: don’t worry if you lose in the trial court, we will be your Tim Howard and save you from the gaping jaws of litigation. …
The Relationship Is Governed By Multiple Agreements And Not All Require Arbitration; Must You Arbitrate?
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…
Ninth Circuit Revives California Law That Allows Plaintiffs Seeking Injunctive Relief To Avoid Arbitration
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 __,…
Fourth Circuit Sends Franchisee To Individual Arbitration, Expands Application of Concepcion
The Fourth Circuit issued a bold new arbitration decision last week, sending a putative class of shuttle drivers to arbitration while expanding its application of SCOTUS’ Concepcion decision beyond cases involving federal preemption of state arbitration law. Muriithi v. Shuttle Express, Inc., __ F.3d __, 2013 WL 1287859 (4th Cir. 2013).
Muriithi was a…
The Best New Argument For Compelling Arbitration = Rent-A-Center + the AAA Rules
To date, courts have largely limited the impact of the Rent-A-Center decision to arbitration agreements with explicit delegation clauses. But, what if Rent-A-Center applied to every single arbitration agreement that mentioned the AAA rules? That is a very real possibility, and one which would send almost all arbitrability disputes to arbitrators.
The Rent-A-Center decision used…