I regularly receive questions about compelling arbitration under the Federal Arbitration Act. In particular, people ask : (1) Can I file a motion to compel before any other “complaint” is filed; (2) What should I call my motion?; and (3) What is with this 5-day rule hidden inside Section 4 of the FAA? Wanting to confirm the advice I give people, I asked our of our summer associates, Nicole Faulkner, to look into these arcane questions. She did a great job, and here are her tips.

(1) First, it is perfectly fine to start an action with a petition to compel arbitration. In fact, it is quite common. You will be hard pressed, however, to find a case or rule out there explicitly giving permission to do this. The best indicator that no classic “complaint” is necessary comes from dicta in Vaden v. Discovery Bank, 556 U.S. 49 (2009). In that case, the Court is settling a jurisdiction issue but before reaching that question it held that courts should use a “look through” approach to assess the underlying claims. This “look through” approach, says the Court, “permits a § 4 petitioner to ask a federal court to compel arbitration without first taking the formal step of initiating or removing a federal question suit.” Voila! The dissent criticized the fact that the Court did not elaborate on what happens when the petition to compel IS a freestanding claim…what exactly do you “look through” to assess the jurisdiction when there is no Complaint? The Eleventh Circuit answered this question in Community State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011). In that scenario, the Court agreed with Vaden and stated that the “look through” approach gives the Court the ability to dive deep into the “full flavor” of the controversy and they are not limited to what is provided in the motion.

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