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arbitration agreements
Class Action Waiver in Arbitration Agreement Will Be Strictly Enforced Under the Federal Arbitration Act
July 2, 2013
The Court on Thursday continued its recent trend of strictly enforcing the terms of arbitration agreements, holding that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery. The Court’s opinion likely makes such class action waivers ironclad in the absence of specific legislation to the contrary or evidence – such as unconscionability under state law – that...
July 2, 2013
The Court on Thursday continued its recent trend of strictly enforcing the terms of arbitration agreements, holding that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the cost of proving an individual claim in arbitration exceeds the potential recovery. The Court’s opinion likely makes such class action waivers ironclad in the absence of specific legislation to the contrary or evidence – such as unconscionability under state law – that...
Outsourcing Justice: The Rise of Modern Arbitration Laws in America
June 26, 2013
Arbitration is a method of dispute resolution in which parties agree to submit their dispute to a private, neutral third person, instead of a traditional court with a judge and jury. This private system of arbitration, which is often confidential and secretive, can be a polar opposite, in almost every way, to the public court system. Over the past few decades, arbitration agreements have proliferated throughout American society. Such agreements appear in virtually all types of consumer transactions,...
June 26, 2013
Arbitration is a method of dispute resolution in which parties agree to submit their dispute to a private, neutral third person, instead of a traditional court with a judge and jury. This private system of arbitration, which is often confidential and secretive, can be a polar opposite, in almost every way, to the public court system. Over the past few decades, arbitration agreements have proliferated throughout American society. Such agreements appear in virtually all types of consumer transactions,...
Just Arbitrate Already
May 6, 2013
Two recent decisions from the U.S. Court of Appeals for the Eighth Circuit show how hard it is for parties to invalidate arbitration agreements. The decisions in M.A. Mortenson Co. v. Saunders Concrete Co., Inc. and Owen v. Bristol Care demonstrate that it will either take an obvious defect in an arbitration clause or a special command from Congress before courts will limit the enforceability of arbitration agreements.
May 6, 2013
Two recent decisions from the U.S. Court of Appeals for the Eighth Circuit show how hard it is for parties to invalidate arbitration agreements. The decisions in M.A. Mortenson Co. v. Saunders Concrete Co., Inc. and Owen v. Bristol Care demonstrate that it will either take an obvious defect in an arbitration clause or a special command from Congress before courts will limit the enforceability of arbitration agreements.
Arbitration Clause Interpretation Round-Up
April 24, 2013
Following is a summary of five recent opinions of note concerning the interpretation of arbitration agreements and arbitration procedure: Klein v. Nabors Drilling USA L.P., Case No. 11-30824 (5th Cir. Feb. 26, 2013) (reversing denial of motion to compel arbitration; option in contract to agree to non-binding alternative dispute resolution proceedings did not render mandatory arbitration clause unenforceable). Noohi v. Toll Bros., Inc., Case No. 12-1261 (4th Cir. Feb. 26, 2013) (affirming denial...
April 24, 2013
Following is a summary of five recent opinions of note concerning the interpretation of arbitration agreements and arbitration procedure: Klein v. Nabors Drilling USA L.P., Case No. 11-30824 (5th Cir. Feb. 26, 2013) (reversing denial of motion to compel arbitration; option in contract to agree to non-binding alternative dispute resolution proceedings did not render mandatory arbitration clause unenforceable). Noohi v. Toll Bros., Inc., Case No. 12-1261 (4th Cir. Feb. 26, 2013) (affirming denial...
Killing Them with Kindness: ‘Consumer-Friendly’ Arbitration Clauses after Concepcion
April 17, 2013
In AT&T v. Concepcion, the Supreme Court struck California’s so-called “Discover Bank rule” – a judge-made rule providing that arbitration agreements attended by class action waivers are unenforceable, if those agreements are contained in standard form consumer contracts. But, arguably, Concepcion leaves open and unresolved the viability of a state law challenge to a bilateral arbitration clause which is shown, in a particular case, to impose a forfeiture of the claimant’s ability to vindicate...
April 17, 2013
In AT&T v. Concepcion, the Supreme Court struck California’s so-called “Discover Bank rule” – a judge-made rule providing that arbitration agreements attended by class action waivers are unenforceable, if those agreements are contained in standard form consumer contracts. But, arguably, Concepcion leaves open and unresolved the viability of a state law challenge to a bilateral arbitration clause which is shown, in a particular case, to impose a forfeiture of the claimant’s ability to vindicate...
Equitable Estoppel Won’t Reach Non-Signatories in Statutory (Not Contract) Claims
April 16, 2013
In a putative class anti-trust action brought by retail grocers against wholesale grocers, a divided panel of the Eighth...
April 16, 2013
In a putative class anti-trust action brought by retail grocers against wholesale grocers, a divided panel of the Eighth...
The Supreme Court and the Future of Arbitration: Preemptive Federal Procedural Paradigm?
April 9, 2013
Adopted by Congress in 1925, the Federal Arbitration Act (“FAA”) established a federal “pro-arbitration policy.” That much is beyond debate. It would be difficult indeed to find a judicial decision applying the FAA that did not begin its analysis by reciting the policy’s existence. But courts and scholars have been wrestling for decades over what this federal “proarbitration policy” actually means. Eliminating traditional judicial hostility toward enforcing arbitration agreements?...
April 9, 2013
Adopted by Congress in 1925, the Federal Arbitration Act (“FAA”) established a federal “pro-arbitration policy.” That much is beyond debate. It would be difficult indeed to find a judicial decision applying the FAA that did not begin its analysis by reciting the policy’s existence. But courts and scholars have been wrestling for decades over what this federal “proarbitration policy” actually means. Eliminating traditional judicial hostility toward enforcing arbitration agreements?...
Take Harvard Law Survey On Online Arbitration for Consumer Disputes Today!
April 7, 2013
If you want to have an impact on the design of the first online arbitration platform designed specifically for consumer disputes,...
April 7, 2013
If you want to have an impact on the design of the first online arbitration platform designed specifically for consumer disputes,...
“Cheeky” Maryland Rule, Requiring Mutuality In Arbitration Agreements, Not Preempted Under Concepcion
March 15, 2013
In most cases, if this blog mentions Concepcion, it means that a court has found a state statute or line of decisions is preempted by the FAA. A Maryland rule, however, recently ran the Concepcion gauntlet and survived. See Noohi v. Toll Bros., Inc., __ F.3d __, 2013 WL 680690 (4th Cir. Feb. 26, 2013). The Maryland rule in question is that arbitration provisions must be supported by consideration independent of the underlying contract, “namely, mutual obligation,” and stems from...
March 15, 2013
In most cases, if this blog mentions Concepcion, it means that a court has found a state statute or line of decisions is preempted by the FAA. A Maryland rule, however, recently ran the Concepcion gauntlet and survived. See Noohi v. Toll Bros., Inc., __ F.3d __, 2013 WL 680690 (4th Cir. Feb. 26, 2013). The Maryland rule in question is that arbitration provisions must be supported by consideration independent of the underlying contract, “namely, mutual obligation,” and stems from...
Proper Standard for Invalidating Arbitration Agreements Based on Prohibitive Costs
March 12, 2013
Richard A. Bales & Mark B. Gerano, Determining the Proper Standard for Invalidating Arbitration Agreements Based on High Prohibitive Costs: A Discussion on the Varying Applications of the Case-by-Case Rule, 14 Transactions: Tenn. J. Bus. L. 57 (2012). Arbitration is a common means of resolving commercial disputes. Although arbitration is an attractive alternative to litigation, arbitration can be disadvantageous to a potential plaintiff because of high costs. The United States Supreme Court...
March 12, 2013
Richard A. Bales & Mark B. Gerano, Determining the Proper Standard for Invalidating Arbitration Agreements Based on High Prohibitive Costs: A Discussion on the Varying Applications of the Case-by-Case Rule, 14 Transactions: Tenn. J. Bus. L. 57 (2012). Arbitration is a common means of resolving commercial disputes. Although arbitration is an attractive alternative to litigation, arbitration can be disadvantageous to a potential plaintiff because of high costs. The United States Supreme Court...
