After an arbitration about-face by the defendant in a class action, the Eleventh Circuit ruled that the defendant had waived its right to compel arbitration by: participating in litigation for two years and affirmatively declining to enforce its arbitration agreement with the plaintiffs until after SCOTUS issued its Concepcion decision. Garcia v. Wachovia Corp.,
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Eleventh Circuit Finds FAA Preempts Nascent Florida Law
By Liz Kramer on
The Eleventh Circuit has decided to proactively preempt Florida law, before it could get in the way of the FAA by favoring class arbitrations (despite contract language precluding them).
In Pendergast v. Sprint Nextel Corp., __ F.3d. __, 2012 WL 3553466 (11th Cir. Aug. 20, 2012), a wireless customer wanted to bring a class action…
Parties Can Waive Arbitration, Despite A "No Waiver" Clause in Contract
By Liz Kramer on
Posted in Waiver of Right to Arbitrate
The Sixth Circuit easily affirmed a district court’s finding that the defendant had waived its right to arbitration by participating in litigation for eight months. Johnson Assoc. Corp. v. HL Operating Corp., __ F.3d __, 2012 WL 1861675 (6th Cir. May 23, 2012). Plaintiffs had filed suit in late December of 2009 and a discovery…
The Missouri Compromise: Precedent Finding Class Arbitration Waivers Unconscionable Is Vacated
By Liz Kramer on
The Missouri Supreme Court just acknowledged that its 2010 decision, finding a class arbitration waiver was unenforceable under state law, is preempted by the FAA, pursuant to the rationale of Concepcion. In Robinson v. Title Lenders, Inc., __ S.W.3d __, 2012 724669 (Mo. Mar. 6, 2012) and Brewer v. Mo. Title Loans, Inc.…
Reviving Your Right To Arbitrate
By Liz Kramer on
Posted in Waiver of Right to Arbitrate
The Eleventh Circuit has ruled that the plaintiff’s act of amending its complaint may allow a defendant to resurrect its previously-waived right to arbitrate. “[I]n limited circumstances, fairness dictates that a waiver of arbitration be nullified by the filing of an amended complaint.” Krinsk v. Suntrust Banks, Inc., __ F.3d ___, 2011 WL 3902998,…
Proving A Waiver of Arbitration Rights Is Now Easier In Construction Cases (8th Cir.)
By Liz Kramer on
A party with an arbitration agreement can waive its right to arbitrate by acting inconsistently with that right, usually by “invoking the litigation machinery” before demanding arbitration. However, the federal circuits are split over whether a party asserting a waiver of arbitration must also show it was prejudiced by the other party’s use of that…