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
Saint Vacatur’s Day: Feb. 3
The Sixth and Second Circuits addressed whether to vacate an arbitrator’s award recently. The Sixth Circuit vacated the award of an arbitrator who “exceeded his powers,” while the Second Circuit refused to vacate for “evident partiality.”
Based on the parties’ agreement, the Sixth Circuit considered vacatur under the Michigan Arbitration Act. In particular, the appellant
Third Circuit Says "Bring On De-Funct!"
In a 2-1 decision, the Third Circuit held last week that the arbitration agreement in a personal computer purchase was valid, despite its mandate of a defunct arbitral forum. Its decision, Khan v. Dell Inc., ___ F.3d ___, 2012 WL 163899 (3d Cir. Jan. 20, 2012), is in line with the decision of the
South Dakota Disagrees with Illinois and Pennsylvania, Finding Choice of Defunct Arbitration Rules is Not "Integral" To Agreement
Earlier in 2011, courts in both Pennsylvania and Illinois issued decisions finding that when a consumer’s arbitration agreement called for the National Arbitration Forum (NAF) to administer the arbitration, but the NAF no longer administered consumer disputes, the arbitration agreements were unenforceable. Those courts found the parties’ choice of NAF was “integral” to the arbitration
An "Impasse" Of One Or Two Months Over Arbitrator Selection Does Not Entitle Court to Appoint Arbitrator
The Supreme Court of Texas issued three decisions last week that all relate to arbitrator selection and offer reminders to drafters and litigators that arbitrator selection is a critical component of arbitration agreements.
Two of the decisions involved tort claims against the same defendant, a cemetery owner. In re Serv. Corp. Int’l, ___ S.W.3d ___,
Second Circuit Finds Courts Have Power To Enjoin Arbitration In Limited Circumstances
The Second Circuit just held that a federal court has the power to enjoin an ongoing arbitration. In re Am. Express Fin. Advisors Sec. Litig., ___ F.3d ___, 2011 WL 5222784 (2nd Cir. 2011). While many litigants would no doubt like a federal court to enjoin their arbitrations — especially when arbitrators refuse to
Another State Law Bites the Concepcion Dust
In April, the Supreme Court struck down a common law rule in California that declared most consumer arbitration agreements void if they prohibit classwide arbitration of claims, holding that it was preempted by the Federal Arbitration Act. AT&T Mobility, LLC v. Concepcion, 131S. Ct. 1740 ( 2011). In the last few weeks, two federal circuit