May 30, 2014 Articles

Federal Cases Addressing Arbitrability Continue to Change the Landscape

A review of these decisions and their progeny for any commercial litigator braving this complex area

by Marc J. Zucker

The U.S. Supreme Court's landmark decision last June in American Express v. Italian Colors, ___ U.S. __, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013), like its earlier decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011), solidified the broad deference given to arbitration agreements by the Supreme Court and reinforced the principle that state laws and policies invalidating arbitration agreements and class-action waivers are preempted by the Federal Arbitration Act (FAA) to the extent they are deemed to disfavor arbitration. More recent cases have helped to illustrate the far-reaching implications of those decisions and to draw more clearly defined boundaries. A review of those decisions and their progeny, most notably in the Second and Ninth Circuits, is useful for any commercial litigator braving the complex area of arbitrability jurisprudence.

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