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Category Archives: Arbitration

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Getting to “yes”: Ninth Circuit provides guidance on formation of “browsewrap” arbitration agreements

Posted in Arbitration

In the three years since AT&T Mobility LLC v. Concepcion, courts have largely been rejecting substantive attacks on arbitration agreements that waive class actions.  By contrast, in some cases plaintiffs have succeeded in avoiding arbitration by arguing that they never agreed to it in the first place. The latest case to address such questions of… Continue Reading

Another California Court Does Backflips to Thwart Arbitration and Elevate The Class-Action Device

Posted in Arbitration

The hostility of some California courts to arbitration—and their resistance to preemption under the Federal Arbitration Act (FAA)—has produced nearly three decades of U.S. Supreme Court reversals. The most recent is AT&T Mobility LLC v. Concepcion, which held that the FAA preempted the Discover Bank rule, under which the California Supreme Court had blocked enforcement… Continue Reading

Hall Street Runs Both Ways: Parties Can Neither Waive Nor Expand Judicial Review of Arbitration Awards, Says Ninth Circuit

Posted in Arbitration

Back in 2008, the Supreme Court held in Hall Street Associates, L.L.C. v. Mattel, L.L.C. that parties to an arbitration agreement subject to the Federal Arbitration Act (FAA) cannot agree to empower a federal court with more searching judicial review than section 10 of that Act specifies. According to the Ninth Circuit, just as the… Continue Reading

CFPB Has Much More Work To Do On Arbitration Study

Posted in Arbitration

The day after we released our study (pdf) of class action litigation, the Consumer Financial Protection Bureau issued some preliminary results in connection with its study of arbitration under the Dodd-Frank Act. (That statute gives the CFPB power to regulate or prohibit the use of arbitration agreements by the businesses it oversees, but requires the… Continue Reading

Fifth Circuit Overturns NLRB’s Anti-Arbitration D.R. Horton Ruling

Posted in Arbitration

We have frequently chronicled the ongoing efforts of the plaintiffs’ bar to circumvent the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which held that the Federal Arbitration Act (FAA) requires the enforcement of parties’ agreements to resolve their disputes through individual arbitration rather than class or collective proceedings. One of the most prominent… Continue Reading

Will California Strike Again? The Latest Word From the California Supreme Court On Enforcing Arbitration Agreements

Posted in Arbitration

The California Supreme Court has a long history of inventing new rules—either from common law or as “glosses” on statutes—to invalidate arbitration agreements entered into by consumers and employees. For example, in 2005, that court announced a new unconscionability rule—the“Discover Bank” doctrine, which was named after one of the parties to the case—that effectively blocked… Continue Reading

How to Draft Fair and Enforceable Consumer and Employee Arbitration Agreements

Posted in Arbitration

We frequently help companies address how to manage dispute resolution with their customers and employees—and in particular, how to make use of arbitration as a fair alternative to litigation in court (including class actions).  As a result, we have a great deal of experience with drafting new arbitration agreements and helping companies fine-tune their existing… Continue Reading

Supreme Court Rejects Challenge to Arbitration Agreements

Posted in Arbitration, U.S. Supreme Court

The Supreme Court’s decision today in American Express Co. v. Italian Colors Restaurant (pdf), No. 12-133, eliminated the last significant obstacle to adoption of fair, efficient arbitration systems that increase access to justice for consumers while reducing transaction costs for everyone, particularly the huge legal fees of both plaintiffs’ lawyers and defense lawyers. In AT&T Mobility… Continue Reading

Supreme Court Issues Narrow Decision Declining to Overturn Arbitrator’s Ruling that Silent Arbitration Clause Permits Class Arbitration

Posted in Arbitration, U.S. Supreme Court

We’ve previously blogged about the Supreme Court’s grant of review and argument in Oxford Health Plans LLC v. Sutter.  Today, the Supreme Court issued its decision (pdf).  In a narrowly-written ruling, the  Court held that courts lack authority under the Federal Arbitration Act (FAA) to vacate an arbitral award authorizing class arbitration when when (1) the… Continue Reading

U.S. Chamber of Commerce Files Amicus Brief On Arbitration Issues In Key California Supreme Court Case

Posted in Arbitration

In the wake of AT&T Mobility LLC v. Concepcion, the California Supreme Court granted review in three cases involving significant arbitration issues, including key questions about whether the Federal Arbitration Act preempts California law concerning the enforceability of arbitration agreements. My colleagues and I have filed amicus briefs on behalf of the Chamber of Commerce… Continue Reading

Webinar on Arbitration And Class Actions Two Years After Concepcion

Posted in Arbitration, U.S. Supreme Court

Last Saturday marked the two-year anniversary of the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, a decision that has had an enormous impact on the world of class-action litigation.  To date, Concepcion has been cited in over 650 decisions, and (for the most part) has been applied broadly to enforce agreements to arbitrate… Continue Reading

Ninth Circuit Narrows California Exception To Arbitration Agreements, But Puts Off Deciding Whether FAA Preempts The Exception Altogether

Posted in Arbitration

Earlier today, the Ninth Circuit issued its en banc opinion in Kilgore v. KeyBank, N.A. The court had granted en banc review to decide whether the Federal Arbitration Act preempts California’s so-called “Broughton/Cruz” rule, which declares that claims for “public” injunctive relief under California consumer protection statutes are unsuitable for, and exempt from, arbitration. As… Continue Reading

Supreme Court Hears Argument In Class Arbitration Case, Oxford Health Plans v. Sutter

Posted in Arbitration, U.S. Supreme Court

The Supreme Court heard oral argument earlier today in Oxford Health Plans LLC v. Sutter, No. 12-135, on whether the Federal Arbitration Act (“FAA”) allows an arbitrator to interpret an arbitration agreement that does not affirmatively authorize class arbitration to permit use of that procedure. For some background on Oxford, please see our prior blog… Continue Reading

Second Circuit Reverses Denial Of Individual Arbitration In Title VII Class Action

Posted in Arbitration, Employment

Since Concepcion, the plaintiffs’ bar has been exhorting courts to recognize exceptions to its holding that courts may not refuse to enforce an arbitration agreement on the ground that it precludes class actions.  In the employment context, the plaintiffs’ bar thought that it had a winner with Chen-Oster v. Goldman Sachs,  in which a magistrate… Continue Reading

Supreme Court Appears Poised To Reject Second Circuit’s Articulation of “Effective Vindication Of Federal Statutory Rights” Defense For Avoiding Class Arbitration Waivers

Posted in Arbitration, U.S. Supreme Court

Yesterday, my colleagues and I attended oral arguments before the Supreme Court in American Express Co. v. Italian Colors Restaurant, No. 12-133, in which we submitted an amicus brief on behalf of business groups.   As readers of the blog know, the issue in American Express is whether plaintiffs may avoid their agreements to arbitrate… Continue Reading

California Supreme Court Grants Review In Employment Arbitration Case

Posted in Arbitration, Employment

The California Supreme Court granted review last week in Franco v. Arakelian Enterprises Inc., No. S207660, in which the California Court of Appeal had refused to enforce an agreement to arbitrate on an individual basis in the context of a wage-and-hour class action. For more on Franco, please see our prior post. The California Supreme… Continue Reading

Class Action Plaintiffs Can’t Have It Both Ways When Opposing Motions to Compel Arbitration

Posted in Arbitration, Class Certification, Motions Practice, Numerosity, Predominance, Typicality

In litigation—as in war—it is natural to focus on winning today’s skirmish and to defer planning for battles that might not happen for weeks or months.  But that shortsightedness can lead to strategic blunders—as one class action plaintiff suing Capital One Bank and credit counseling agency InCharge Debt Solutions recently learned the hard way. In King… Continue Reading

Supreme Court Grants Review in Class Arbitration Case, Oxford Health Plans LLC v. Sutter

Posted in Arbitration, U.S. Supreme Court

Two years ago, the Supreme Court held “that a party may not be compelled under the [Federal Arbitration Act] to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Stolt-Nielsen v. AnimalFeeds International Corp., 130 S. Ct. 1758, 1775 (2010) (emphasis in original). But the… Continue Reading

Washington State Appellate Court’s Ruling Appears To Contravene Federal Arbitration Law

Posted in Arbitration

The Supreme Court’s unanimous summary reversal in Nitro-Lift last week sends a strong message that state courts must adhere to the Federal Arbitration Act—a legal principle that is important to businesses seeking to enforce their contractual arbitration rights when plaintiffs file non-removable class actions in state court. Just as importantly, it confirms that the Court… Continue Reading

California Court Of Appeal Strikes Down Arbitration Agreement In Wage-And-Hour Class Action Despite Concepcion

Posted in Arbitration, Employment

A California appellate court weighed in last week with another effort to circumvent the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion. In Franco v. Arakelian Enterprises, Inc. (pdf), a panel of the Court of Appeal in Los Angeles affirmed an order refusing to enforce an employee’s agreement to arbitrate disputes with his… Continue Reading

Supreme Court Summarily Reverses State Court For Failure To Follow High Court’s Arbitration Precedents

Posted in Arbitration, U.S. Supreme Court

We usually don’t report on Supreme Court cases that don’t involve class action issues. That said, regular readers of the blog know that the enforceability of arbitration agreements has become a critical issue in class action defense. For that reason, we wanted to apprise you of the Supreme Court’s latest arbitration decision in Nitro-Lift Technologies,… Continue Reading

Supreme Court Grants Certiorari in American Express Arbitration Case

Posted in Arbitration, U.S. Supreme Court

The Supreme Court has just granted certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133.   Earlier today, my colleague Andy Pincus previewed the issue presented to the Court, which is (in a nutshell) whether plaintiffs may avoid their agreements to arbitrate on an individual rather than class-wide basis by contending that they cannot… Continue Reading

Supreme Court Poised To Decide Whether To Grant Certiorari In Major Arbitration Case (In re American Express)

Posted in Arbitration, U.S. Supreme Court

When the Supreme Court convenes for its private conference today, the Justices will consider whether to grant certiorari in a case presenting one of the most significant questions regarding the meaning of the Court’s ruling in AT&T Mobility v. Concepcion that remains unresolved in the lower courts. Following the Concepcion decision, opponents of arbitration tried… Continue Reading