Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated — like competing evidence about whether the parties ever formed an arbitration agreement — those should be determined by a trial. That is the lesson of three recent cases from the Third Circuit, the Ninth Circuit, and the Supreme Court of Alabama.
The two federal court opinions are short and sweet. In Gib, LLC v. Salon Ware, Inc., 2016 WL 463429 (9th Cir. Feb. 5, 2016), the district court granted a motion to compel arbitration, despite the undisputed fact that the plaintiff never signed the written agreement and the fact that the plaintiff “raised a genuine issue of material fact by submitting a sworn declaration denying that the parties had entered into a written agreement.” Because of that genuine issue of fact, the Ninth Circuit reversed and remanded for either a court or jury trial under Section 4 of the FAA.
