In most cases, if this blog mentions Concepcion, it means that a court has found a state statute or line of decisions is preempted by the FAA. A Maryland rule, however, recently ran the Concepcion gauntlet and survived. See Noohi v. Toll Bros., Inc., __ F.3d __, 2013 WL 680690 (4th Cir. Feb. 26,
Concepcion
Could Arbitration of Cost-Prohibitive State Law Claims Be Compelled While Similar Federal Claims Stay In Court?
A recent decision from a federal district court in Tennessee raises a discrepancy in how the courts treat arbitration agreements that hinder a plaintiff’s state law and federal law claims. Cases under the FAA state that arbitration agreements cannot be enforced if enforcement means plaintiffs will not be able to effectively vindicate their federal statutory…
Prius Owners Put the Brakes On Arbitration With Non-Signatory Toyota
The Ninth Circuit ruled this week that a class of car owners could pursue their court claims against the manufacturer, Toyota, for product defects and false advertising, despite the existence of an arbitration agreement in each of the owners’ purchase agreements with the car dealerships. The court held that Toyota had not proven either of…
2012 in Arbitration Law: Is Class Arbitration Naughty or Nice?
The big issue in arbitration law in 2012 was class arbitration. Many state court opinions that had found class arbitration waivers unconscionable were preempted under federal law based on application of Concepcion. And the federal circuit courts developed a split on how to interpret Stolt-Nielsen in cases where the parties’ arbitration agreement lacks language…
Don't Game The System: "A Motion To Compel Arbitration Will Almost Never Be Futile"
After an arbitration about-face by the defendant in a class action, the Eleventh Circuit ruled that the defendant had waived its right to compel arbitration by: participating in litigation for two years and affirmatively declining to enforce its arbitration agreement with the plaintiffs until after SCOTUS issued its Concepcion decision. Garcia v. Wachovia Corp.,…
Individual arbitration is plaintiff's "only remedy, illusory or not" — Third Circuit
The earthquake that was the Concepcion decision (in April of 2011) is still sending aftershocks throughout the judicial system. In last week’s ruling, the Third Circuit compelled individual arbitration in Homa v. American Express Co., 2012 WL 3594231(3d Cir. Aug. 22, 2012), a case in which the parties have been fighting about whether the plaintiff…
The Missouri Compromise: Precedent Finding Class Arbitration Waivers Unconscionable Is Vacated
The Missouri Supreme Court just acknowledged that its 2010 decision, finding a class arbitration waiver was unenforceable under state law, is preempted by the FAA, pursuant to the rationale of Concepcion. In Robinson v. Title Lenders, Inc., __ S.W.3d __, 2012 724669 (Mo. Mar. 6, 2012) and Brewer v. Mo. Title Loans, Inc.…
Concepcion's Continuing Domino Effect: Case Law in California, Washington, and Pennsylvania Preempted By FAA
Three state law decisions relating to arbitration were toppled recently, based on application of the U.S. Supreme Court’s preemption decision in Concepcion.
In Kilgore v. Keybank, __ F.3d __, 2012 WL 718344 (9th Cir. Mar. 7, 2012), the Ninth Circuit held that California case law, which precluded arbitration of claims asking for public injunctive…
West Virginia's Arbitration Ruling Could Not Stay Under SCOTUS' FAA Preemption Radar
The U.S. Supreme Court today vacated the West Virginia Supreme Court of Appeals’ decision from last June, holding that pre-dispute arbitration clauses in nursing home contracts will not be enforced in that state. The content of the decision is not surprising, as it relies on notions of federal preemption and follows the analysis in Concepcion…
Rule-Making Comes To The Rescue of Class Arbitration
A reasonable person may have thought that the Supreme Court effectively killed off class arbitrations with its decisions in Stolt-Nielsen and Concepcion, but at least two government agencies have recently made decisions that ensure financial consumers and employees can bring classwide claims in some arbitrations.
FINRA, the Financial Industry Regulatory Authority, regulates all securities…