2019
Ninth Circuit Permits Appeal of Order Remanding Case for New Arbitration
By Andrew D. Campbell – March 06, 2019
The circuit determined that an order that vacates and orders further proceedings was appealable.
What Will They Think of Next?
By Mitchell L. Marinello – February 27, 2019
The FAA says state law may not discriminate against arbitration agreements, but state legislatures and courts, most recently in Kentucky, keep coming up with new ways to avoid this ruling.
Parties Share Responsibility for Getting Complete Arbitrator Disclosures
By Jeanne Kohler – February 13, 2019
A party’s failure to ask questions can doom its later effort to avoid confirmation of the award.
Second Circuit Recognizes Exception to Functus Officio Doctrine
By Michael S. Oberman – February 6, 2019
The court affirmed, largely based on precedent from other circuits.
The Hague Conference Guide on the Use of Video Links
By S. I. Strong – January 23, 2019
Although the Hague Evidence Convention is not binding in arbitration, neutrals and advocates would be well advised to take these principles into consideration.
Seventh Circuit: Class Arbitration Is for Courts to Decide, Not Arbitrators
By Gail Jankowski – January 17, 2019
Although predictions are hazardous, in all likelihood the district court will find that the applicable arbitration clause does not authorize class or collective arbitration.
Supreme Court Says “Wholly Groundless” Argument Is Just That
By Mitchell L. Marinello – January 10, 2019
In the absence of a clause giving the arbitrator the right to decide his or her own jurisdiction or the adoption of arbitration rules that give the arbitrator this authority, the courts are responsible for deciding issues of arbitrability.
2018
What Do You Call a Worker?
By Maretta Comfort Toedt – December 28, 2018
The Federal Arbitration Act, mandatory arbitration agreements, and independent contractors.
Eleventh Circuit Adds to Circuit Split Over Class Arbitrations
By Henry R. Chalmers – December 20, 2018
According to the court, incorporating AAA Rules into an arbitration agreement is sufficient evidence that the parties intended for the arbitrator, not a court, to decide whether an agreement permits arbitration of class claims.
Ethics Misstep Leads to Fee Award Being Vacated
By Mitchell L. Marinello – December 6, 2018
Lawyers should disclose conflicts of interest at the beginning of the engagement to avoid the risk of disqualification and of losing the client and compensation.
Non-Signatory Insurers Able to Compel Arbitration
By Melanie Mohr – November 28, 2018
Using the doctrine of equitable estoppel can require plaintiffs to arbitrate when their claims are intertwined with others that are subject to arbitration.
U.S. Supreme Court to Decide Three Arbitration Cases in Fall 2018 Term
By Beth Graham – November 16, 2018
The Court heard oral arguments in October of this year.
Be Sure Your Arbitration Agreement Is Clear about Who Decides Arbitrability
By Maretta Comfort Toedt – November 7, 2018
The parties also did not settle on whether the agreement provided the dispute to be heard as a class.
Arbitration Can’t Be Efficient if the Parties (or Any Party) Won’t Let It Be
By Robert L. Arrington – October 31, 2018
Sometimes the parties themselves conspire, wittingly or unwittingly, to make the process slower and more expensive than litigation.
California’s Birbrower Decision Is Laid to Rest
By Dixon Q. Dern – October 25, 2018
Lawyers are no longer considered to be engaging in “the unauthorized practice of law.”
Second Circuit Declines to Enforce Consumer Arbitration Post-Bankruptcy
By Briana Echols – October 10, 2018
Employers can use arbitration clauses to prevent class action suits from employees.
Texas Court Affirms Award Against Absent Party
By Melanie Mohr – September 26, 2018
Dixie ordered to pay $16 million for breach of contract.
California Requires New Mediation Disclosure
By Ana M. Sambold – September 20, 2018
Attorneys are now required to provide clients with a printed disclosure regarding confidentiality restrictions in mediation and obtain a signed acknowledgement.
Award Confirmed Despite Exclusion of Evidence
By Mark Kantor – September 13, 2018
An arbitrator is not required to accept all the evidence so long as the parties receive a fundamentally fair hearing.
"Very Limited Review" Given to Arbitration Award in Divorce Setting
By Andrew VandenBerg – September 6, 2018
The arguments for modification or rejection did not meet requirements stated in the Illinois Uniform Arbitration Act.
Delegation Clause in Insurance Contract Is Void under Virginia Law
By Mengru Song – August 29, 2018
Insurers cannot compel a policyholder to arbitrate insurance disputes.
Mississippi Supreme Court Rejects Trial Court’s Modification of Award
By Katharine Kohm – August 23, 2018
The court emphasized that "arbitration is meant to supplant litigation, not supplement it."
Non-Signatory Cannot Be Required to Arbitrate
By Julia Karaulna – August 15, 2018
The First Circuit concluded that agency, equital estoppel, and third-party beneficiary theories did not apply in this case.
Two Brokers Sue FINRA: The Immunity of Arbitral Institutions
By Mark Kantor – August 9, 2018
A recent decision from the U.S. Court of Appeals for the Seventh Circuit leaves many important issues about this topic unresolved.
Judgment Confirming Award Reversed Due to Hague Convention
By Mitchell L. Marinello – July 31, 2018
The California Court of Appeals found two recent cases unpersuasive.
Intervention Denied in Proceeding to Confirm Arbitration Award
By S.I. Strong – July 20, 2018
Proposed intervenors claimed an interest in the proceeding based on a fear that the award might ultimately be enforced against them.
Post-Litigation Arbitration Agreement Held Unenforceable
By Raven Villegas – July 13, 2018
Compelling arbitration a year after the commencement of litigation is viewed as a delay tactic.
Uber Defeated by the Color of Its Hyperlink
By Liz Kramer – July 5, 2018
Does enforcement of an arbitration clause hinge on the color of your website design?
Supreme Court to Hear “Groundless Arbitration” Case
By Mark Kantor – June 29, 2018
Does the Federal Arbitration Act permit an arbitrator to decide arbitrability?
Enforcement of Arbitration Clause Does Not Constitute State Action
By Milana Lickova – June 22, 2018
AT&T customers brought a class action alleging false advertising of data services.
Will SEC Approve Mandatory Securities Arbitration?
By S.I. Strong – June 13, 2018
Questions have arisen as interest in shareholder arbitration has been increasing around the world.
Are Truck Drivers Exempt from the FAA When Classified as Independent Contractors?
By Mitchell L. Marinello – June 6, 2018
The exemption does not apply to sales employees but only to “transportation workers.”
An Epic Decision
By Debra Fischman, James M. Garner, and Jeffrey D. Kessler – May 30, 2018
Employers may continue to require workers to relinquish the right to bring class-action claims on disputes over wages and hours.
Text Message Plaintiff Not Bound to Arbitrate
By Nicole O’Toole – May 23, 2018
Subway's spam causes headache, not indigestion.
Wanna Be a Mediator? Find a Niche
By John Bickerman – May 16, 2018
Becoming a successful neutral is not an easy task and there is no guarantee for success.
Arbitral Immunity Does Not Apply to Claim for False Advertising
By S.I. Strong – May 10, 2018
The ultimate decision in federal court could have significant repercussions on the arbitral industry.
Arbitrators Not Authorized to Subpoena Non-Parties for Document Discovery
By Mark Kantor – May 2, 2018
The Ninth Circuit based its decision on this emerging rule on a textual reading of the FAA.
FLSA Claims Held Arbitrable Against All Three Employers
By Kelly Rice – April 25, 2018
Signing an employment contract with only one company does not preclude arbitration with all companies involved.
Arbitrator Has Authority to Make Summary Dispositions
By Mark Kantor and Mitchell Marinello – April 19, 2018
The court found such authority was implicit.
Arbitrator Decides Own Jurisdiction under JAMS Rules
By Henry Caldwell – April 13, 2018
The incorporation of JAMS rules into the clause granted power “clearly and unmistakably” to the arbitrators.
Med-Arb: Maybe Not a Better Idea
By John Bickerman – April 4, 2018
Should the same person serve as the mediator and arbitration in a single dispute?
Minor Not Bound by Mother’s Arbitration Agreement
By S.I. Strong – March 28, 2018
A class action complaint was filed against Credit One Bank for repeated, harassing telephone calls to the child’s cellphone.
Appropriations Act Targets Arbitration
By Mark Kantor – March 22, 2018
A last-minute budget agreement slides a pre-dispute arbitration provision rider into final legislation.
Mixing It Up: Did We Mediate or Arbitrate?
By Mitchell L. Marinello – March 14, 2018
Be careful to properly document the nature of your proceedings.
Reference to Nonexistent Arbitration Forum Nullifies Arbitration Agreement
By Robert E. Bartkus – March 8, 2018
CashCall has been the subject of significant litigation due to its unique business model and bizarre arbitration clauses.
Email to Employee Not Sufficient Notice of Arbitration
By S.I. Strong – February 28, 2018
A recent case from the English Commercial Court considers issues relating to service of notice of arbitration by email.
Financial Hardship Can Nullify Employee’s Obligation to Arbitrate Statutory Claims
By Lally Gartel – February 13, 2018
New York appellate court rules the trial court also could consider the risk that the plaintiff might have to pay the defendant’s legal fees and expenses.
How (Not) to Carve Out Injunctive Relief from Arbitration Clauses
By D.C. Toedt III – February 8, 2018
A lesson in drafting.
Federal Court Refuses to Seal Judicial Record of Arbitration
By Mark Kantor – January 23, 2018
A recent decision offers a reminder of the hurdle a party must meet to seal a proceeding to confirm or vacate an award.
Ninth Circuit Holds that Arbitration Is Not State Action
By S.I. Strong – January 12, 2018
There’s been much scholarly debate on how best to describe the connection between arbitration and the Constitution.
Arbitrator Not Required to Follow Own Precedent
By Michael S. Oberman – January 5, 2018
The arbitrator interpreted a collective bargaining agreement differently in two different cases.