A resource for litigators, in-house counsel, and arbitrators
Lots of folks are writing about the long-term impact of SCOTUS’s recent decision in Epic Systems, but it is also important to note that there has been immediate, short-term impact.
For example, a lead plaintiff agreed to take her sex discrimination case against a law firm to individual arbitration, abandoning her putative class action,…
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 high courts of two states have allowed non-signatories to compel arbitration in recent weeks. The cases show courts are addressing non-signatory issues using different standards and raise important drafting issues for joint ventures and business affiliates.
In Locklear Automotive Group, Inc. v. Hubbard, 2017 WL 4324852 (Alabama Sept. 29, 2017), the Supreme Court…
While the Supreme Court has put off hearing a more contentious arbitration case until the fall (presumably in hopes that it will have nine justices by then), tomorrow it will hear the nursing home arbitration case from Kentucky. I look forward to listening to the questions and trying to figure out why the Justices granted …
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…
Showing it will soldier on without Justice Scalia, the Supreme Court granted cert, vacated, and remanded an arbitration decision from West Virginia yesterday. Because this is the exact same treatment the Court gave a case from Hawaii’s highest court in January (and the same treatment I predicted, ahem), it suggests SCOTUS is trying to go…
A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country. There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses. (Recall its arbitration feud with SCOTUS in 2012?) But, this month, West Virginia’s highest court…
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…
The U.S. Supreme Court today vacated the West Virginia Supreme Court of Appeals’ decision from last June, holding that pre-dispute arbitration clauses in nursing home contracts will not be enforced in that state. The content of the decision is not surprising, as it relies on notions of federal preemption and follows the analysis in Concepcion…