A recent decision from the 10th Circuit shows there is a whole new way to invalidate an arbitration agreement. In Citizen Potawatomi Nation v. Oklahoma, 2018 WL 718606 (10th Cir. Feb. 6, 2018), the court found the arbitration agreement unenforceable because the parties provided for de novo review of any arbitration award in federal court,
Are Arbitration Agreements With Attorneys Unenforceable? Maine Says Yes (Mostly).
While I was busy writing deep thoughts about arbitration at the end of 2017 (see here and here), courts around the country rudely kept churning out new arbitration opinions. Hmph. So, I have some catching up to do. I start with one that has most captured my attention, Snow v. Bernstein, Shur, Sawyer &
3 Class Actions, 3 Motions to Compel Arbitration, 1 Class Action Survives
The Ninth, Sixth, and Third Circuits all recently issued decisions about whether putative class or collective actions could proceed despite the existence of arbitration clauses. In two of those decisions, the courts found the arbitration agreements did not allow for class arbitration and therefore dismissed the claims. In the third, the court found the arbitration
Two States Buck FAA Preemption, While Alabama Stays the Course
Three state supreme courts tackled arbitration law in recent weeks: Alabama, North Carolina, and Rhode Island. Rhode Island reversed a construction arbitration award because it disagreed with the arbitrator’s analysis. North Carolina found that an arbitration agreement in a doctor-patient setting was unenforceable as a breach of the doctor’s fiduciary duty. And Alabama strictly enforced
Louisiana Rejects Arbitration Clause In Contract Of Adhesion
The Supreme Court of Louisiana refuses to send customers who were injured while playing at Sky Zone to arbitration, finding that the arbitration clause “is adhesionary and therefore unenforceable”. Duhon v. Activelaf, LLC, __ So. 3d __, 2016 WL 6123820 (La. Oct. 19 2016); Alicea v. Activelaf, LLC, __ So. 3d __, 2016
Ninth Circuit Refuses To Enforce Arbitration Clause In Sham Franchise Agreement
A short new opinion from the Ninth Circuit may run counter to long-standing Supreme Court precedent. In Casa Del Caffe Vergnano v. Italflavors, 2016 WL 1016779 (9th Cir. Mar. 15, 2016), the court refused to enforce an arbitration agreement in a contract that the parties admitted signing, because the parties simultaneously signed a second
Fourth Circuit Holds Arbitration Agreement May Not Waive All Federal Statutory Rights
This week, the Fourth Circuit found an arbitration agreement invalid because it waived all federal and state laws. Although two other federal circuit courts had already found the same company’s arbitration agreement unenforceable because it called for an impossible arbitration process, the Fourth Circuit found it invalid for a new reason.
The issue in Hayes
SCOTUS Finds California's Contract Interpretation Skills Lacking In New Arbitration Decision
Just under the wire, SCOTUS released an arbitration opinion today, ensuring that 2015 would continue the string of years with cases interpreting the Federal Arbitration Act. In DIRECTV v. Imburgia, the Supreme Court found that California’s interpretation of an arbitration clause was preempted by the FAA. DIRECTV is a 6-3 decision, with Justice Kagan
Hawaii Finds Arbitration Agreement With "Severe Limitations on Discovery" is Unconscionable
Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it prohibited both discovery and punitive damages. Narayan v. The Ritz-Carlton Dev. Co., Inc., __ P.3d __, 2015 WL
Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid
Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to Missouri’s recent ruling). Alltel Corp. v. Rosenow, 2014 WL 4656609 (Ark. Sept. 18, 2014). New Jersey grounded its decision on