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
Rules Update: Improved AAA Commercial Rules; NAF Rules Not An Obstacle To Enforcing Arbitration
By Liz Kramer on
On October 1, new Commercial Arbitration Rules became effective at the American Arbitration Association (AAA). These rules are likely to apply to all commercial arbitrations filed on and after October 1 (unless an arbitration agreement specifically provides for old rules). The AAA posted its own summary of the changes. Four of the most notable…
Illusoriness Gains In Popularity As An Arbitration Buster
By Liz Kramer on
Posted in Validity of Arbitration Agreement
You hear more about Lena Dunham than you expect, given the audience for “Girls”, right? (Read this article for more.) The same is true, or should be true, for the contract defense of illusoriness. After decades of disuse, it is popping up more and more often as a defense to the enforcement of arbitration clauses…
First State Court Decision Is Reversed Under SCOTUS' Amex Ruling
By Liz Kramer on
Put this post in the “I called it” category.
On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration. On June 20, the U.S. Supreme Court decided American Express, holding that arbitration agreements must…
Federal Circuit Refuses To Enjoin International Arbitration of Patent Claims
By Liz Kramer on
Just after I posted about the awesome power of federal courts to enjoin other cases, the Federal Circuit reminds us the power is not absolute. In Sanofi-Aventis Deutschland Gmbh v. Genentech, Inc., __ F.3d __, 2013 WL 1921073 (Fed. Cir. May 10, 2013), it affirmed the district court’s decision not to enjoin a foreign…
Seventh Circuit Is Sick Of Arbitration Appeals; Threatens "High Risk of Sanctions"
By Liz Kramer on
Posted in Appealing Arbitration Decisions
In an opinion released yesterday, the Seventh Circuit schooled appellant’s counsel first on the application of the New York Convention and Panama Convention, then on the high standard of review it applies to commercial arbitration awards, and finally expressed profound disappointment with the frequency of motions to vacate arbitration awards. “Attempts to obtain judicial review…
"Cheeky" Maryland Rule, Requiring Mutuality In Arbitration Agreements, Not Preempted Under Concepcion
By Liz Kramer on
Posted in Validity of Arbitration Agreement
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,…
Authority To Enter Into Contract Is Issue For Courts, Not Arbitrators
By Liz Kramer on
The Third Circuit just issued a decision that tries to divine the dividing line between challenges to the formation of contracts containing arbitration clauses (which are presumptively for courts), and challenges to the validity of contracts containing arbitration clauses (which are presumptively for arbitrators, if the challenge is to the contract as a whole). It…
Abstention Trumps Arbitration In Tenth Circuit
By Liz Kramer on
The Tenth Circuit this week refused to consider a plaintiff’s substantive arguments about its right to arbitrate because it found abstention was appropriate under the Colorado River doctrine. D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., __ F.3d __, 2013 WL 150221 (10th Cir. Jan. 15, 2013). Though the factual situation in Osguthorpe is…