A resource for litigators, in-house counsel, and arbitrators
Three federal appellate courts recently affirmed lower courts’ refusal to compel arbitration. These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the claims at issue and the defendant cannot have waived its right to arbitrate by engaging in significant discovery and motion practice.
In…
Almost two years ago in American Express Co. v. Italian Colors, SCOTUS significantly narrowed, but did not overrule, the “effective vindication” doctrine, which allows plaintiffs to invalidate an arbitration agreement if it precludes them from effectively vindicating their federal statutory rights. A decision today from the Eighth Circuit shows just how difficult it is…
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…
Using a different analysis, but reaching the same result as a recent decision from the Seventh Circuit, the Eleventh Circuit agreed that a defendant could not compel arbitration of consumer claims before the Cheyenne River Sioux Tribal Nation in South Dakota. Inetianbor v. CashCall, __ F.3d__, 2014 WL 4922225 (11th Cir. Oct.…
Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to Missouri’s recent ruling). Alltel Corp. v. Rosenow, 2014 WL 4656609 (Ark. Sept. 18, 2014). New Jersey grounded its decision on…
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,…
California is the Judd Nelson of The Preemption Club. (Or the John Bender, if you prefer using character names.) The Supreme Court has sent the California courts to preemption detention for ignoring the Federal Arbitration Act in blockbuster, groundbreaking cases (see Concepcion). But California cannot help itself. It keeps coming up with novel arguments…
A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country. There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses. (Recall its arbitration feud with SCOTUS in 2012?) But, this month, West Virginia’s highest court…
No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby allowing a class action to proceed. So, here is a Halloween tale for all to keep in mind.
Ralphs Grocery Company hired Zenia Chavarria to work in the deli of one of its grocery stores. Ms.…
Now that we know the Supreme Court is not going to be addressing non-signatories’ ability to compel arbitration this term (at least not in the Toyota case), we can take a moment to look at what lower courts are doing with that issue. In short, the trend is for courts to clarify that it…