Today I present a collection of recent state and federal appellate court decisions that vacate or un-vacate arbitration awards. The seven opinions below emphasize how difficult it is to prove that an arbitrator exceeded his or her power and suggest that the surest way to vacate an arbitration award is still by presenting evidence that
When Can A Party Recover Attorneys' Fees Incurred Confirming An Arbitration Award?
If you won your arbitration, it is vexing to have to spend many thousands more in attorneys’ fees opposing a motion to vacate the arbitration award. (That is especially true if you signed up for arbitration thinking it was faster and avoided appeals.) But, can you ask the court to award you the attorneys’ fees
Three State Courts Hold Timeliness Of Claim Is Issue For Arbitrator
In March, the highest courts of Montana, Texas, and Wisconsin all held that, when parties have a valid arbitration agreement, the issue of whether an arbitration demand was timely is presumptively for the arbitrator to decide. That principle of law has been established under the FAA at least since the Howsam decision in 2002 (and
First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months
We haven’t had a good waiver case in a while. The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either). It found that a plaintiff had waived its right to arbitrate, not by bringing its claims to court
"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
Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid
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
Seventh Circuit Finds Tribal Arbitration Is Unreasonable and Unconscionable
In a victory for advocates who worry that the odds are impossibly stacked against consumers in some arbitral fora, the Seventh Circuit found that a class of borrowers did not have to proceed with arbitration conducted by the Cheyenne River Sioux Tribe (“Tribe”) in South Dakota “because the arbitral mechanism specified in the agreement is
Nitty Gritty Advice for Compelling Arbitration under the FAA
I regularly receive questions about compelling arbitration under the Federal Arbitration Act. In particular, people ask : (1) Can I file a motion to compel before any other “complaint” is filed; (2) What should I call my motion?; and (3) What is with this 5-day rule hidden inside Section 4 of the FAA? Wanting to
Arbitration Award Vacated Because Arbitrators Were Impartial
Although we usually expect arbitrators to be impartial, the Supreme Court of Texas vacated an arbitration award because the chosen arbitrators were too impartial. Americo Life, Inc. v. Myer, __S.W.3d__, 2014 WL 2789429 (Tex. June 20, 2014). Because the court found the parties’ agreement allowed each side to choose an arbitrator who was partial
California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements
This week the Supreme Court of California held that the FAA preempts California’s 2007 Gentry ruling, one that protected employees from nearly all class action waivers in arbitration agreements. Iskanian v. CLS Transp. Los Angeles, LLC, __ P.3d__, 2014 WL 2808963 (Cal. June 23, 2014). However, asserting its Californian-ness, the court found an clever