The rule (pdf) just proposed by the Consumer Financial Protection Bureau to regulate arbitration agreements is not a surprise: the Bureau has said for months that it was developing such a rule.
This post examines the details of the proposal—how …
Category Archives: Arbitration
Subscribe to Arbitration RSS FeedFourth Circuit: Courts, Not Arbitrators, Decide If Arbitration Agreement Authorizes Class-Wide Arbitration
A unanimous panel of the Fourth Circuit has held Del Webb Communities, Inc. v. Carlson that the question whether an arbitration agreement authorizes class-wide arbitration is for the courts, not an arbitrator, to decide—unless the agreement clearly and unmistakably delegates …
Supreme Court Holds that Federal Arbitration Act Preempts California Court’s Interpretation of Arbitration Clause
In AT&T Mobility LLC v. Concepcion, the Supreme Court held that the Federal Arbitration Act (“FAA”) preempts state-law rules barring enforcement of an arbitration agreement if the agreement does not permit the parties to utilize class procedures in arbitration …
Man Bites Dog: California Supreme Court unanimously rejects unconscionability challenge to consumer arbitration provision
The California Supreme Court has a reputation for hostility to arbitration, especially in the consumers and employment context. Much of the arbitration docket of the United States Supreme Court over the past 30 years has involved reversals of California Supreme …
Supreme Court Grants Certiorari To Address Interplay of Federal Arbitration Act And State-Law Savings Clause In Arbitration Agreement
As readers of this blog know, prior to the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the California Supreme Court (and a number of other state courts) had declared that waivers of class-wide arbitration were unenforceable as …
NLRB Refuses To Yield On Anti-Arbitration Ruling Despite Near-Unanimous Rejection By Courts
Today is Halloween, an occasion when our thoughts turn to jack o’lanterns, ghosts, and zombies. We are particularly fascinated by zombies—the dead returned to life. But we’re not the only ones. In a decision earlier this week, a majority of …
Getting to “yes”: Ninth Circuit provides guidance on formation of “browsewrap” arbitration agreements
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 …
Another California Court Does Backflips to Thwart Arbitration and Elevate The Class-Action Device
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 …
Hall Street Runs Both Ways: Parties Can Neither Waive Nor Expand Judicial Review of Arbitration Awards, Says Ninth Circuit
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 …
CFPB Has Much More Work To Do On Arbitration Study
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 …
Fifth Circuit Overturns NLRB’s Anti-Arbitration D.R. Horton Ruling
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 …
Conference On Class Actions In Chicago on December 9 and 10, 2013
Law Seminars International is once again holding its annual class actions conference in Chicago on December 9 and 10. As in past years, the organizers have put together a great group of speakers to address the most recent developments affecting …
Will California Strike Again? The Latest Word From the California Supreme Court On Enforcing Arbitration Agreements
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“…
How to Draft Fair and Enforceable Consumer and Employee Arbitration Agreements
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 …
Supreme Court Rejects Challenge to Arbitration Agreements
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 …
Supreme Court Issues Narrow Decision Declining to Overturn Arbitrator’s Ruling that Silent Arbitration Clause Permits Class Arbitration
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 …
U.S. Chamber of Commerce Files Amicus Brief On Arbitration Issues In Key California Supreme Court Case
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 …
Webinar on Arbitration And Class Actions Two Years After Concepcion
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 …
Ninth Circuit Narrows California Exception To Arbitration Agreements, But Puts Off Deciding Whether FAA Preempts The Exception Altogether
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 …
Supreme Court Hears Argument In Class Arbitration Case, Oxford Health Plans v. Sutter
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 …
Second Circuit Reverses Denial Of Individual Arbitration In Title VII Class Action
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’ …
Supreme Court Appears Poised To Reject Second Circuit’s Articulation of “Effective Vindication Of Federal Statutory Rights” Defense For Avoiding Class Arbitration Waivers
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 …
California Supreme Court Grants Review In Employment Arbitration Case
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 …
Class Action Plaintiffs Can’t Have It Both Ways When Opposing Motions to Compel Arbitration
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 …
