The interplay of the separability doctrine and delegation clauses can create a bullseye that only Hawkeye, the OG Avenger with a bow, might have a prayer of hitting. The Missouri Supreme Court provided a nice reminder about this problem in a recent case, State Ex Rel. Newberry v. Jackson, 2019 WL 2181859 (May 21,
rent-a-center
Spring State Court Smorgasbord: Three Decisions Hostile To Arbitration
The focus today is recent state appellate court decisions on arbitration. Because there are an awful lot of them, I am going to divide them roughly into those that are pro arbitration, and those that are hostile to arbitration. This post focuses on the three relatively hostile cases (with the friendly cases coming in a…
The Arbitration Resistance May Look Like This… (Post #300)
What happens when state courts disagree with SCOTUS’s interpretation of the Federal Arbitration Act? They resist, and they have a thousand different ways of doing so. The Mississippi Supreme Court demonstrated one way to resist recently in Pedigo v. Robertson, Rent-A-Center, Inc., 2017 WL 4838243 (Miss. Oct. 26, 2017). (I neglected to mention the…
10th Circuit Resolves One Arbitrability Circuit Split, But Creates Another
If you are a party that wants courts to rigidly enforce delegation clauses – sending questions about even the validity of the agreement to arbitration – then you will appreciate a new decision from the Tenth Circuit. In Belnap v. Iasis Healthcare, __ F.3d __, 2017 WL 56277 (10th Cir. Jan. 5, 2017),…
Class Rep Can Opt Out of Arbitration for All (And Other Recent State Court Anomalies)
Continuing last week’s theme of “States Gone Wild,” here are three more oddball summer decisions from state supreme courts. All of them find interesting paths around federal case law (IMHO).
Georgia Says Class Complaint Is Deemed Arbitration Opt Out For All Class Members
In Bickerstaff v. SunTrust Bank, 2016 WL 3693778 (Ga. July 8,…
New Jersey Becomes Third Recent State Court to Refuse To Enforce Delegation Clause
In a decision that appears intentionally controversial, the Supreme Court of New Jersey yesterday refused to enforce the delegation clause in a for-profit college’s enrollment agreement in a 5-1 opinion. Morgan v. Sanford Brown Institute, 2016 WL 3248016 (N.J. June 14, 2016). Although the delegation clause had never been specifically challenged by the plaintiffs, as…
Should You Cut The Delegation Clause From Your Arbitration Agreement?
A recent report showed that less than half of arbitration agreements in the consumer financial arena include delegation clauses in their arbitration agreements. Two recent decisions from state high courts suggest that is a wise decision because courts do not like to enforce delegation clauses. (Reminder: a delegation clause gives the arbitrator explicit authority to…
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…
The Best New Argument For Compelling Arbitration = Rent-A-Center + the AAA Rules
To date, courts have largely limited the impact of the Rent-A-Center decision to arbitration agreements with explicit delegation clauses. But, what if Rent-A-Center applied to every single arbitration agreement that mentioned the AAA rules? That is a very real possibility, and one which would send almost all arbitrability disputes to arbitrators.
The Rent-A-Center decision used…
Eighth Circuit Is First To Expand Rent-A-Center Beyond Delegation Clauses
Relying on the Rent-A-Center decision, the Eighth Circuit Court of Appeals issued a decision today that construed the parties’ relevant arbitration agreement very narrowly, thereby ducking a decision about whether the larger “disputes” section of the contract was void under state law. That makes the Eighth Circuit the first federal court to do exactly what…