arbitration agreements
Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act
December 11, 2013
Part I: An Introduction to the Problem and its Solution Arbitration can be a very effective way of resolving a wide range of disputes arising out of many legal and commercial relationships. It can benefit the parties if they make informed decisions about agreeing to it, and craft their agreement accordingly. It can benefit the courts and the general public by shifting to the private sector dispute-resolution costs that the public-sector would otherwise bear. Arbitration is not a perfect form...
December 11, 2013
Part I: An Introduction to the Problem and its Solution Arbitration can be a very effective way of resolving a wide range of disputes arising out of many legal and commercial relationships. It can benefit the parties if they make informed decisions about agreeing to it, and craft their agreement accordingly. It can benefit the courts and the general public by shifting to the private sector dispute-resolution costs that the public-sector would otherwise bear. Arbitration is not a perfect form...
Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act, Part II
December 4, 2013
Part II: A Consent-Based Framework for Enforcing Arbitration Awards Enforcing Arbitration Agreements to Promote Arbitration The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle...
December 4, 2013
Part II: A Consent-Based Framework for Enforcing Arbitration Awards Enforcing Arbitration Agreements to Promote Arbitration The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle...
Class Action Waivers in Arbitration Agreements Validated in NLRB Loss in the Fifth Circuit
December 4, 2013
A decision handed down by the U.S. Court of Appeals for the Fifth Circuit in New Orleans Tuesday upheld the use of class or collective action waivers in arbitration agreements. The decision in D.R. Horton Inc. v. National Labor Relations Board, argued before the court back in February, overturned the NLRB’s previous decision, which held that the massive Texas-based residential building company was violating the National Labor Relations Act when it required employees to sign a waiver that prevents...
December 4, 2013
A decision handed down by the U.S. Court of Appeals for the Fifth Circuit in New Orleans Tuesday upheld the use of class or collective action waivers in arbitration agreements. The decision in D.R. Horton Inc. v. National Labor Relations Board, argued before the court back in February, overturned the NLRB’s previous decision, which held that the massive Texas-based residential building company was violating the National Labor Relations Act when it required employees to sign a waiver that prevents...
Arbitration Agreements Waiving FLSA Collective Actions
December 3, 2013
In their Arbitration column, Samuel Estreicher, a professor at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth, write: The Second Circuit has extended the Supreme Court's pro-arbitration jurisprudence to the labor and employment context through 'Parisi,' 'Sutherland,' and 'Raniere.' Employers and employees can expect courts in this circuit routinely to uphold arbitration agreements that, while they preclude class or collective...
December 3, 2013
In their Arbitration column, Samuel Estreicher, a professor at New York University School of Law and of counsel to Schulte Roth & Zabel, and Holly H. Weiss, a partner at Schulte Roth, write: The Second Circuit has extended the Supreme Court's pro-arbitration jurisprudence to the labor and employment context through 'Parisi,' 'Sutherland,' and 'Raniere.' Employers and employees can expect courts in this circuit routinely to uphold arbitration agreements that, while they preclude class or collective...
Small Business B-2-B Arbitration Part II.B: How Arbitration Agreements Work
November 4, 2013
If you’ve followed this series from inception you already know that the decision to agree to arbitrate disputes arising out of a transaction, and if so, under what terms, can be as important as any other decision a business must make about price and performance terms. Armed with sufficient knowledge about how arbitration and arbitration-law works, business people and their lawyers can make better-informed choices about arbitration, including whether seeking advice from an attorney with arbitration...
November 4, 2013
If you’ve followed this series from inception you already know that the decision to agree to arbitrate disputes arising out of a transaction, and if so, under what terms, can be as important as any other decision a business must make about price and performance terms. Armed with sufficient knowledge about how arbitration and arbitration-law works, business people and their lawyers can make better-informed choices about arbitration, including whether seeking advice from an attorney with arbitration...
Roundup of Motions to Compel Involving Non-Signatories to Arbitration Agreements
September 26, 2013
Michael Wolgin of Jorden Burt LLP has compiled a useful roundup of recent motions to compel involving non-signatories to arbitration agreements: Four recent decisions considered whether to compel arbitration in the context of non-signatories and multiple agreements and claims. The decisions highlight different doctrines relevant to this analysis, including equitable estoppel, third-party beneficiary, and agency principals. Murphy v. DirecTV, Inc., No. 11-57163 (9th Cir. July 30, 2013) (reversing...
September 26, 2013
Michael Wolgin of Jorden Burt LLP has compiled a useful roundup of recent motions to compel involving non-signatories to arbitration agreements: Four recent decisions considered whether to compel arbitration in the context of non-signatories and multiple agreements and claims. The decisions highlight different doctrines relevant to this analysis, including equitable estoppel, third-party beneficiary, and agency principals. Murphy v. DirecTV, Inc., No. 11-57163 (9th Cir. July 30, 2013) (reversing...
Class-Action Waivers in Arbitration Agreements Are Enforceable
September 18, 2013
The Fourth Circuit held that class-action waivers in otherwise valid arbitration agreements are enforceable under the Federal Arbitration Act (FAA). The court held that the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), “plainly prohibited” the courts from invalidating an otherwise valid arbitration agreement due to a class-action waiver. As a result, it is error to hold that a class-action waiver in an arbitration agreement is unconscionable.
September 18, 2013
The Fourth Circuit held that class-action waivers in otherwise valid arbitration agreements are enforceable under the Federal Arbitration Act (FAA). The court held that the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), “plainly prohibited” the courts from invalidating an otherwise valid arbitration agreement due to a class-action waiver. As a result, it is error to hold that a class-action waiver in an arbitration agreement is unconscionable.
First State Court Decision Is Reversed Under SCOTUS’ Amex Ruling
August 26, 2013
Put this post in the “I called it” category. On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration. On June 20, the U.S. Supreme Court decided American Express, holding that arbitration agreements must be enforced according to their terms under the Federal Arbitration Act, even if it means that low-dollar claims will not be prosecuted. ...
August 26, 2013
Put this post in the “I called it” category. On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively pursue their claims in individual arbitration. On June 20, the U.S. Supreme Court decided American Express, holding that arbitration agreements must be enforced according to their terms under the Federal Arbitration Act, even if it means that low-dollar claims will not be prosecuted. ...
FAA Pre-Emption of State Law Limits on Arbitration: The Ninth Circuit Grapples with Concepcion
July 29, 2013
In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration. The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s...
July 29, 2013
In the Concepcion case in 2011 [AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740], five Justices of the Supreme Court of the United States agreed that the FAA pre-empts a rule of state law that makes an arbitration agreement unconscionable if the agreement prohibits class arbitration. The actual implications of Concepcion for class arbitration remain murky, as the Supreme Court’s other recent decisions relating to class arbitration have been context-specific. Thus in Stolt-Nielsen the Court’s...
Supreme Court Affirms Commitment to Narrow Judicial Review of Arbitration Awards in Sutter Decision
July 15, 2013
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement,...
July 15, 2013
Today, the Supreme Court in Oxford Health Plans v. Sutter, http://www.scotusblog.com/case-files/cases/oxford-health-plans-llc-v-sutter/, affirmed its commitment to narrow judicial review of arbitration decisions. In Sutter, the arbitrator interpreted an arbitration agreement to permit class arbitration. Because the parties asked the arbitrator to interpret the agreement, the only question for a court, according to the Supreme Court, is whether the arbitrator interpreted the parties’ agreement,...
