A new opinion from the Eleventh Circuit highlights an issue that can be confusing to those encountering FAA case law for the first time: when does the federal presumption of arbitrability apply? The answer is the presumption only applies to whether the scope of an arbitration agreement is broad enough to encompass the parties’ dispute,
Authority To Enter Into Contract Is Issue For Courts, Not Arbitrators
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
West Virginia Won't Back Down On Arbitration Decision
The saga of Brown v. Genesis Healthcare Corporation continues. Almost exactly a year ago, the West Virginia Supreme Court declared that arbitration agreements in pre-dispute nursing home contracts were unenforceable. Then in February SCOTUS reversed that decision and remanded the case for consideration of un-preempted unconscionability. Now, the West Virginia court has issued its decision
A Hypothetical Illustrating The Thin Line Between Formation Challenges and Validity Challenges
Building off last post’s discussion of the Solymar case, and the surprisingly fuzzy line between challenges to the formation of contracts containing arbitration provisions and challenges to the validity of those contracts, here is a hypothetical for you to consider. (Why a hypothetical? Because it is spring break, and spring break reminds me of law
11th Circuit Finds Not All Formation Challenges Are Created Equal (Some Go Straight To Arbitrator)
The severability doctrine of federal arbitration law tells litigants that unless they can specifically challenge the validity of the arbitration provisions of the contract, as opposed to challenging the entire contract, the courts will not address the merits of the challenge. (See entire line of increasingly harsh cases starting with Prima Paint and continuing
It's A Wrap: 2011 in Arbitration Law
As we pile up the cardboard boxes that held holiday gifts for the recycling truck and select our new year’s resolutions for 2012, here are a few reflections on the last twelve months in arbitration law. I would summarize it as another year where the U.S. Supreme Court was playing whack-a-mole, trying to tamp