Federal Arbitration Act
What Constitutes Waiver of a Right to Arbitrate under the FAA?
April 17, 2013
It is well established that courts generally enforce the strong federal policy in favor of arbitration. That is not to say, however, that a court will automatically dismiss a case subject to an arbitration clause in favor of alternate dispute resolution. Before doing so, the court must first determine whether a party has relinquished its right to arbitrate and what standard to use in making that determination. Section 3 of the Federal Arbitration Act (FAA),9 U.S.C. § 3 , states that where there...
April 17, 2013
It is well established that courts generally enforce the strong federal policy in favor of arbitration. That is not to say, however, that a court will automatically dismiss a case subject to an arbitration clause in favor of alternate dispute resolution. Before doing so, the court must first determine whether a party has relinquished its right to arbitrate and what standard to use in making that determination. Section 3 of the Federal Arbitration Act (FAA),9 U.S.C. § 3 , states that where there...
How the Supreme Court Thwarted the Purpose of the Federal Arbitration Act
April 4, 2013
Jodi Wilson, Assistant Professor of Law and Director of Legal Methods at the University of Memphis’ Cecil C. Humphreys School of Law, has published a timely article entitled How the Supreme Court Thwarted the Purpose of the Federal Arbitration Act, Case Western Reserve Law Review, Vol. 63, No. 1, 2012; University of Memphis Legal Studies Research Paper No. 122. In the article, Professor Wilson discusses the policy behind the Federal Arbitration Act and critiques the high court’s decision...
April 4, 2013
Jodi Wilson, Assistant Professor of Law and Director of Legal Methods at the University of Memphis’ Cecil C. Humphreys School of Law, has published a timely article entitled How the Supreme Court Thwarted the Purpose of the Federal Arbitration Act, Case Western Reserve Law Review, Vol. 63, No. 1, 2012; University of Memphis Legal Studies Research Paper No. 122. In the article, Professor Wilson discusses the policy behind the Federal Arbitration Act and critiques the high court’s decision...
Investor Protection Meets the Federal Arbitration Act
March 22, 2013
In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit...
March 22, 2013
In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit...
SCOTUS Hears Oral Argument in Arbitration Class Action Waiver Case
March 13, 2013
The Supreme Court of the United States yesterday heard oral argument in American Express Co. v. Italian Colors Restaurant (Case No. 12-133), in which the Court will decide the following issue: Whether the Federal Arbitration Act permits courts, invoking the federal substantive law of arbitrability, to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim. The Second Circuit's opinion in In re American Express III 667 F.3d 204 (2d Cir....
March 13, 2013
The Supreme Court of the United States yesterday heard oral argument in American Express Co. v. Italian Colors Restaurant (Case No. 12-133), in which the Court will decide the following issue: Whether the Federal Arbitration Act permits courts, invoking the federal substantive law of arbitrability, to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim. The Second Circuit's opinion in In re American Express III 667 F.3d 204 (2d Cir....
U.S. Supreme Court Seems Poised to Compel Arbitration — Again
March 5, 2013
SCOTUSblog has linked to the transcript from yesterday's oral arguments in American Express Co. v. Italian Colors Restaurants. SCOTUSblog, as always, has full materials on the case here. The issue in the case is: Whether the Federal Arbitration Act permits courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim. The plaintiffs in the case are merchants who claim...
March 5, 2013
SCOTUSblog has linked to the transcript from yesterday's oral arguments in American Express Co. v. Italian Colors Restaurants. SCOTUSblog, as always, has full materials on the case here. The issue in the case is: Whether the Federal Arbitration Act permits courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim. The plaintiffs in the case are merchants who claim...
Abstention Trumps Arbitration In Tenth Circuit
February 1, 2013
The Tenth Circuit this week refused to consider a plaintiff’s substantive arguments about its right to arbitrate because it found abstention was appropriate under theColorado River doctrine. D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., __ F.3d __, 2013 WL 150221 (10th Cir. Jan. 15, 2013). Though the factual situation inOsguthorpe is unusual, the decision highlights tension between the federal abstention doctrine and case law under the Federal Arbitration Act. Osguthorpe involved...
February 1, 2013
The Tenth Circuit this week refused to consider a plaintiff’s substantive arguments about its right to arbitrate because it found abstention was appropriate under theColorado River doctrine. D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., __ F.3d __, 2013 WL 150221 (10th Cir. Jan. 15, 2013). Though the factual situation inOsguthorpe is unusual, the decision highlights tension between the federal abstention doctrine and case law under the Federal Arbitration Act. Osguthorpe involved...
