At least in theory, mutual assent remains a cornerstone of contract law and thus of arbitration. The tricky part has become understanding what counts as mutual assent in a world where overwhelming empirical evidence, not to mention our own lived experience, demonstrates that no one reads standardized terms and conditions, including arbitration provisions buried in
notice
No Proof Blind Plaintiffs Aware Of Arbitration Clause, So Discrimination Class Action Proceeds In Court
By Liz Kramer on
Posted in Validity of Arbitration Agreement
The First Circuit just faced a fascinating formation issue: if a customer cannot see what she is signing, and no employee reads it to her or ensures she knows there are legal terms, is there a contract? With Justice Souter sitting by designation on the panel, the court answered “no,” and thereby kept a class…
Nebraska Real Estate And Nebraska Borrowers, But Federal Arbitration Act Applies
By Liz Kramer on
Posted in Validity of Arbitration Agreement
In a fight over whether a single lending transaction involved interstate commerce, the Supreme Court of Nebraska found the Federal Arbitration Act (FAA) applied and preempted its state arbitration act. Wilczewski v. Charter West Nat’l Bank, __ N.W.2d__ (Neb. Dec. 9, 2016).
The case involved buyers who purchased a home from a bank (who…
Montana Finds Arbitration Agreement Unconscionable For Lack of Mutuality
By Liz Kramer on
Posted in Validity of Arbitration Agreement
March comes in like a lion, right? Well, that’s not true with respect to the weather here in Minneapolis. But it may be true with respect to arbitration decisions from around the country. This post focuses on two recent decisions from state high courts that refuse to compel arbitration.
In Global Client Solutions, LLC v.
Court Vacates $125M Award Due To Arbitrator's Misleading Disclosures
By Liz Kramer on
Posted in Appealing Arbitration Decisions
Today we take a close look at that rare creature: an opinion finding sufficient basis under the FAA to vacate an arbitration award. In Tenaska Energy Inc. v. Ponderosa Pine Energy, LLC, __S.W.3d __, 2014 WL 2139215 (Tex. May 23, 2014), the Supreme Court of Texas found an arbitrator had shown “evident partiality” due…
Incorporating Arbitration Agreements By Reference: the Key is Reasonable Notice
By Liz Kramer on
Posted in Validity of Arbitration Agreement
In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no, and maybe, but the analysis in all three turns on whether the party resisting arbitration should reasonably have known that an…