The Second Circuit just reminded us that there’s nothing magical about the label “arbitration” and, despite it being a good idea to include it, there’s nothing magical about using – or failing to use – phrases like “final and binding” in an arbitral clause.
In Milligan v. CCC Information Services, Inc., 920 F.3d 146
There are only four ways to avoid an arbitration agreement. You can prove: 1) it was never formed; 2) it was formed, but is invalid under state law; 3) the current dispute is outside the scope of it; or 4) the other party waived their right to arbitrate (through litigation conduct). Today’s post is about
The last post focused on three recent state appellate court decisions that refused to compel arbitration or vacated an award, and this follow-up post focuses on seven recent cases that are friendly to arbitration.
My favorite is from Montana. Although none of its arbitration decisions have been addressed by SCOTUS, Montana decided to preempt any
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
Despite how often I talk about whack-a-mole and the tug-of-war between the state courts and SCOTUS on arbitration, the truth is that the majority of state supreme courts follow SCOTUS’s arbitration precedent (whether holding their noses or not, we don’t know). Recent weeks have given us multiple of those pro-arbitration state court decisions to highlight
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
The highest state court in West Virginia just found that a credit card company did not waive its right to arbitrate, despite initially choosing a court forum and waiting almost five years to raise its right to arbitrate. That is a somewhat surprising decision from a court that has been repeatedly willing to buck SCOTUS
While regular people count down the days to summer blockbusters that come in the form of high-paid actors fighting aliens or robots, I prefer my summer blockbusters in the form of arbitration opinions that have been months in the making (maybe finally released because the clerks are about to turn over?). Today, I report on
Three federal appellate courts recently affirmed lower courts’ refusal to compel arbitration. These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the claims at issue and the defendant cannot have waived its right to arbitrate by engaging in significant discovery and motion practice.
In
The Fifth Circuit un-vacated an arbitration award last week, holding the district court had wrongly concluded that the court was the proper decision-maker on contract formation. Although courts are presumptively authorized to decide whether an arbitration agreement exists, the Fifth Circuit found the parties altered that presumption by “submitting, briefing, and generally disputing that issue