I can’t believe we’re more than a week into August! I don’t know about you, but I feel like I’m going to have to say goodbye to summer too soon. I love fall, so maybe that’s not so bad?
Anyway, speaking of farewells, this week we get a back-to-the-basics refresher from the Eleventh Circuit on
My students are sometimes surprised to learn that statutory rights are, with a handful of very minor exceptions, fully arbitrable. That surprise often turns to indignation when they read Justice Scalia’s majority opinion in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and realize that this is true even absent
Today’s post covers three new developments from this past week. The Fifth Circuit found a defendant waived its right to arbitrate a class action; the Second Circuit found arbitrators retain power to clarify ambiguous awards; and Jay-Z found his list of potential arbitrators sorely lacking in diversity.
In Forby v. One Technologies, 2018 WL 6191349
In an opinion that coins new terms and uses the insouciant tone of a blogger, the 11th Circuit just shut down a putative class action brought by homeowners against a vendor of roof shingles. The Court found that the terms and conditions printed on the exterior of the shingle packaging formed an enforceable contract (with
Almost a year ago, the Second Circuit praised the clean, readable design of Uber’s app. Because the reference to Uber’s terms of service was not cluttered and hyperlinked to the actual terms, the Second Circuit held Uber could enforce its arbitration agreement and the class action waiver within it. But, just last week, the First
SCOTUS finally delivered its decision today in Epic Systems Corp. v. Lewis, the consolidated case that addresses whether employers can require employees to give up their right to class or consolidated litigation as part of an arbitration agreement. In a 5-4 decision authored by Justice Gorsuch, the Court found that class action waivers are
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
The Supreme Court of Nebraska gave an unpleasant surprise to its trial court judges last week: they cannot enforce arbitration agreements sua sponte. Boyd v. Cook, 298 Neb. 819 (Feb. 2, 2018).
The case involved a messy shareholder dispute. A key contract to the dispute contained an arbitration provision covering “any dispute or
In a recent opinion, the Fourth Circuit cited waiver as its basis to refuse to compel arbitration, but the result seems animated by a sense that the arbitration agreements were unenforceable. Degidio v. Crazy Horse Saloon & Restaurant, Inc., __ F.3d __, 2018 WL 456905 (4th Cir. Jan. 18, 2018).
The case involved a
Whenever people ask me why I choose arbitration law to write and talk about, one of the reasons I give is that the law is in flux, creating a demand for information and analysis. Despite the fact that the Federal Arbitration Act has been around for over 90 years, there are constantly new developments in