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
Category Archives: Arbitration
Subscribe to Arbitration RSS FeedWebinar on Arbitration And Class Actions Two Years After Concepcion
Posted in Arbitration, U.S. Supreme CourtLast 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 ArbitrationEarlier 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 CourtThe 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, EmploymentSince 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 CourtYesterday, 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, EmploymentThe 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, TypicalityIn 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 CourtTwo 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 ArbitrationThe 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, EmploymentA 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 CourtWe 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 CourtThe 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 CourtWhen 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
Chamber of Commerce Files Amicus Brief In Critical Ninth Circuit Case Explaining Why Plaintiffs Should Not Be Permitted To Use “Public Injunction” Claims As An End-Run Around Their Arbitration Agreements
Posted in ArbitrationAs we previously reported, the Ninth Circuit granted rehearing en banc in Kilgore v. KeyBank, NA, to determine whether the Federal Arbitration Act preempts a California public-policy rule that declares claims for so-called “public injunctive relief” off-limits to arbitration. On October 26, 2012, my colleagues and I, working with the National Chamber Litigation Center, filed… Continue Reading
Ninth Circuit Grants Rehearing En Banc In Kilgore v. KeyBank To Determine Whether California May Exempt Claims For “Public” Injunctions From Arbitration
Posted in ArbitrationIn an effort to avoid the enforcement of arbitration agreements after AT&T Mobility v. Concepcion, the plaintiffs’ bar has sought to invoke provisions of California’s Unfair Competition Law and Consumers Legal Remedies Act that allow for consumers to pursue claims for injunctive relief on behalf of the “general public.” They point to two pre-Concepcion decisions… Continue Reading
California Supreme Court Grants Review In Iskanian v. CLS Transportation; Will Address Enforceability of Employee Arbitration Agreements After Concepcion
Posted in ArbitrationFor years, the California Supreme Court was one of the strongest forces against arbitration in the country. A disproportionate number of the U.S. Supreme Court’s decisions addressing preemption under the Federal Arbitration Act have reversed decisions of the California state courts or of federal courts applying California law. A recent pro-arbitration decision (Pinnacle Museum Tower… Continue Reading
Can Plaintiffs Dodge Concepcion By Arguing That They Need Class Actions To Vindicate Federal Statutory Claims?
Posted in Arbitration, U.S. Supreme CourtSince Concepcion, the plaintiffs’ bar has been searching for ways to avoid agreements to arbitrate on an individual basis. Because their efforts have largely failed so far, the new frontrunner is the argument that class procedures are necessary to permit “vindication of federal statutory rights.” Most courts to consider the argument have rejected it, but… Continue Reading
Schnuerle v. Insight Communications: Kentucky Supreme Court Rejects “Vindication of Statutory Rights” Challenge To Agreements To Arbitrate On An Individual Basis
Posted in ArbitrationIn Schnuerle v. Insight Communications (pdf), the Kentucky Supreme Court joins a number of other courts in rejecting a key argument that the plaintiffs’ bar has been making in the wake of AT&T Mobility LLC v. Concepcion (pdf)—that arbitration agreements with class waivers should not be enforced whenever the plaintiff is able to persuade a court that… Continue Reading
Pendergast v. Sprint: Eleventh Circuit Holds That Federal Arbitration Act Preempts State-Law Attacks On Class-Action Waiver In Sprint’s Arbitration Agreement
Posted in ArbitrationSince the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the Eleventh Circuit has consistently enforced agreements to arbitrate with class waivers. Earlier this week, it did so again in a case involving Sprint’s arbitration agreement in its service contracts. See Pendergast v. Sprint Nextel Corp. (pdf), No. 09-10612 (11th Cir. Aug. 20,… Continue Reading
Federal District Court: Attorneys Get Paid Even Though No Class Members Submitted Claims
Posted in Arbitration, Class Action SettlementsOne of the keys to our victory in AT&T Mobility v. Concepcion (the Supreme Court case holding that courts can’t refuse to enforce arbitration provisions on the ground that they preclude class actions) was our ability to pull back the curtain on the consumer class action racket and show that often the only ones who… Continue Reading