In a 7-1 decision issued today, the Supreme Court of the United States continued its long line of cases holding that the FAA preempts state law. Kindred Nursing Centers v. Clark, No. 16-32 (May 14, 2017) (click here for a…
Smartphone’s Popup Keypad Frustrates Formation of Arbitration Agreement
A recent decision involving the Uber ride-sharing app demonstrates an important principle in arbitration law. A party may have a well-drafted arbitration agreement, and the terms of the agreement may be appropriate. However, if the agreement is not implemented properly,…
California: The Wild, Wild West of Arbitration Law
The California Supreme Court recently issued a decision following its tradition of finding creative ways to avoid FAA preemption. The court’s analysis provides an interesting blueprint for other states to develop consumer and employee protection statutes that can avoid the…
Third Circuit: Arbitration Agreement Not Validly Formed Through An “Interactive Voice-Response Telephone System”
In Bobbie James v. Global TelLink Corp, No. 16-1555 (Mar. 29, 2017), the Third Circuit held that the defendant telecom company had failed to create a binding arbitration agreement (click here for a copy of the decision). As recognized by…
Trump, Nursing Homes, and Arbitration
Today, the Supreme Court heard oral argument in Kindred Nursing Centers v. Clark. I submitted an amicus brief in this case in support of the nursing home residents. You can find the oral argument transcript here and all the briefs…
Supreme Court Nominee Gorsuch and Arbitration Law
What does the Gorsuch nomination for the Supreme Court mean for arbitration law? I know there are many pressing, weightier, more fundamental issues facing our country, and for those of you who know me, you know I’m not a fan of…
NC Supreme Court Invalidates Doctor-Patient Forced Arbitration Clause Based on Novel Defense
In King v. Bryant, No. 294PA14 (N.C. Jan. 27, 2017) (click here for a copy of the decision), the plaintiff sued his doctor for medical malpractice in connection with a hernia surgery. At the time of the plaintiff’s initial appointment,…
The Kardashian Sisters and Arbitration
In a humorous opinion (“Like makeup, Florida’s doctrine of equitable estoppel can only cover so much,”), the Eleventh Circuit addressed equitable estoppel in connection with a trademark dispute involving the Kardashian sisters and their cosmetic line. See Kroma Makeup EU,…
Federal Court Invalidates Spotify’s Arbitration Clause Using A Clever Argument
In Rent-A-Center v. Jackson (2010), the Supreme Court gave its blessing to “delegation clauses,” whereby the parties agree to arbitrate whether they agreed to arbitrate. (I suppose if you were really paranoid about making sure a case would be sent…
Federal Court Blocks Nursing Home Arbitration Rule
Nursing home trade associations had filed a lawsuit in Mississippi federal court a few weeks ago, asking the court to invalidate a federal agency rule that would have banned the use of arbitration clauses in nursing homes. (See my prior…
District Court Certifies for Appeal Whether FAA is Constitutional
In Youssofi v. Credit One Financial, No. 15-CV-1764-AJB-RBB (S.D. Cal. Oct. 28, 2016), a federal district court granted the plaintiff’s motion to certify for immediate, interlocutory appeal whether application of the FAA, without a heightened, knowing, voluntary waiver standard, violates the…
Third Circuit Invalidates Employment Arbitration Clause
The Third Circuit recently struck down an arbitration clause in the employment setting, finding that the employees at issue did not explicitly agree to arbitrate. See Scott v. Education Management Corporation, No. 15-2177 (3d Cir. Oct. 18, 2016) (click here…
Lawsuit Challenges Agency Rule Banning Arbitration in Nursing Home Agreements
Recently, the federal agency in charge of administering Medicare and Medicaid issued a final rule prohibiting the use of pre-dispute arbitration agreements in nursing homes. In the nursing home context, and in other contexts like consumer and employment settings, there…
California Supreme Court Splits With Federal Courts on Class Arbitration Issue
In Sandquist v. Lebo Automotive, Inc., S220812 (Cal. Sup. Ct. July 28, 2016) (click here for a copy of the decision), the California Supreme Court, in a divided 4-3 opinion, addressed an important “who decides” problem in arbitration law: who…
Ninth Circuit: Party Can Proceed in Court If Unable To Pay Arbitration Costs
What happens if there is an arbitration agreement, but the claimant is unable to pay the costs of arbitration, while the other party is unwilling to front these costs? According to the Ninth Circuit, the plaintiff may now proceed with…
Seventh Circuit Creates Circuit Split With Landmark Decision Giving Big Victory to Employees
In Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016) (click here for a copy of the decision), the Seventh Circuit held that an arbitration clause violated the National Labor Relations Act (NLRA). The clause, which required employees…
Ninth Circuit Raises Fundamental Questions About the Meaning of Arbitration under the FAA
In Boardman v. Pacific Seafood Group, Nos. 15–35257, 15–35504 (9th Cir. May 3, 2016) (click here for a copy of the decision), the majority of a Ninth Circuit panel held that a dispute did not fall under the scope of…
Fifth Circuit Addresses Thorny Issues of Subject Matter Jurisdiction and Confirmation of an Award
The Fifth Circuit recently issued a decision regarding how to assess subject matter jurisdiction in connection with the confirmation of an arbitrator’s award. See Pershing LLC v. Kiebach, No. 15–30396 (5th Cir. Apr. 6, 2016) (click here for a copy…
Fourth Circuit: Class Arbitrability is Gateway Issue for Courts, Not Arbitrators
In Dell Webb Communities, Inc. v. Carlson, No. 15-1385 (4th Cir. Mar. 28, 2016) (click here for a copy of the decision), the Fourth Circuit held that whether an arbitration agreement permits class proceedings is a gateway issue for courts…
Seventh Circuit Opinion Shows Pitfalls With Online Arbitration Clauses
In a must-read decision for anyone creating an arbitration clause online in connection with internet commerce, the Seventh Circuit recently found that a website failed to give reasonable notice of contract terms, and as a result, the arbitration clause was…