A resource for litigators, in-house counsel, and arbitrators
Two posts on arbitration law in one day! What?!? Is it your birthday?
No, no. (Well, maybe. And if so, happy birthday!) It’s just that I finished reading what I think are the three most significant and fascinating arbitration cases to be decided so far this year. I’m so excited that I had to write…
Now that Justice Gorsuch is confirmed and can take the open seat on the Supreme Court, maybe SCOTUS can move forward on the cases about whether employers can make employees waive their right to class actions in an arbitration agreement. (Btw, here’s a nice SCOTUSblog piece on Gorsuch’s arbitration decisions.) In the meantime, California’s…
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…
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.,…
On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert in a case involving the intersection between arbitration and franchise regulation. The petition was filed in November of 2015, and after the respondent initially declined to respond, the Court specifically requested a response, and conferenced the case twice, before…
Just under the wire, SCOTUS released an arbitration opinion today, ensuring that 2015 would continue the string of years with cases interpreting the Federal Arbitration Act. In DIRECTV v. Imburgia, the Supreme Court found that California’s interpretation of an arbitration clause was preempted by the FAA. DIRECTV is a 6-3 decision, with Justice Kagan…
Two opinions came out recently in disputes over the arbitrability of putative class actions alleging that employees were not paid for overtime (and other labor violations). In one, the Nevada Supreme Court acknowledged that its 2011 ruling, finding class action waivers in arbitration were unconscionable, is preempted. In the second, the Ninth Circuit found…
2015 has been a dry spell in arbitration decisions from the U.S. Supreme Court, but 2016 promises to be much more interesting. In addition to the California case being heard next week, SCOTUS just granted certiorari in another California-based arbitration decision. This one, MHN Government Services, Inc. v. Zaborowski, will review an unpublished 2-1 …
Just as I was beginning to worry that arbitration had fallen out of favor at the nation’s highest court… today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an appeal from a California Court of Appeals. In DIRECTV, a case pitting Kirkland &…
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…