Liz Kramer

Liz Kramer

Stinson Leonard Street

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Three Appellate Courts Remand for Trial on Existence of Agreement to Arbitrate

Most questions of arbitrability can be resolved on motion, using a summary judgment-like standard. However, just like summary judgment, if there are genuine disputes of material fact about whether a claim must be arbitrated...more

2/12/2016 - AL Supreme Court Arbitration Arbitration Agreements Corporate Counsel Motion to Compel

Fourth Circuit Holds Arbitration Agreement May Not Waive All Federal Statutory Rights

This week, the Fourth Circuit interpreted SCOTUS’s Italian Colors decision as precluding the waiver of federal statutory rights in an arbitration agreement.  In this sequel of sorts, the Fourth Circuit interpreted a modified...more

2/5/2016 - American Express v Italian Colors Restaurant Arbitration Agreements Corporate Counsel FDCPA Payday Loans Putative Class Actions SCOTUS Statutory Rights TCPA

SCOTUS’s Arbitration Docket Contracts

The actual and potential arbitration docket at the Supreme Court contracted in the last week due to three events. First, SCOTUS made quick work of an appeal from the Hawaii Supreme Court. Remember when I predicted that...more

1/14/2016 - Arbitration Arbitration Agreements DirecTV v Imburgia SCOTUS

Alabama Acknowledges AAA Rules Authorize Arbitrator To Determine Whether Non-Signatory Is Bound

The Alabama Supreme Court has followed the Eighth Circuit’s lead, concluding that when the parties agree to arbitrate pursuant to the AAA Rules, they have clearly and unmistakably authorized the arbitrator to determine who is...more

1/11/2016 - AL Supreme Court American Arbitration Association Arbitration Arbitration Agreements Non-Signatories

SCOTUS Finds California’s Contract Interpretation Skills Lacking In New Arbitration Decision

Just under the wire, SCOTUS released an arbitration opinion today, ensuring that 2015 would continue the string of years with cases interpreting the Federal Arbitration Act. In DIRECTV v. Imburgia, the Supreme Court found...more

12/15/2015 - Arbitration Agreements Class Action Arbitration Waivers DirectTV Federal Arbitration Act SCOTUS

CFPB Likely To Require Access To Class Actions And Data On Individual Arbitrations

Richard Cordray, Director of the Consumer Financial Protection Bureau, has positioned himself as the Boogeyman that financial companies fear this Halloween season. Earlier this month, the CFPB outlined the proposals under...more

10/23/2015 - American Arbitration Association Arbitration Arbitration Agreements Banking Sector Banks CFPB Class Action Class Action Arbitration Waivers Consumer Financial Products Dodd-Frank Financial Institutions Financial Transactions FINRA

SCOTUS Selects Second Arbitration Case For 2015 Term

2015 was a dry spell in arbitration decisions from the U.S. Supreme Court, but 2016 promises to be much more interesting. In addition to the California case being heard next week, SCOTUS just granted certiorari over another...more

10/2/2015 - Arbitration Arbitration Agreements AT&T Mobility AT&T Mobility v Concepcion CA Supreme Court Certiorari Federal Arbitration Act Independent Contractors Military Service Members Misclassification Motion to Compel SCOTUS Severability Doctrine

Kentucky Supreme Court Compares Giving Up Jury Trial To Giving Up Parental Rights; Refuses To Enforce Arbitration

Nursing home arbitration agreements are among the most unpopular arbitration agreements around.  Last week, Kentucky’s Supreme Court issued a lengthy, but fractured, opinion, finding three arbitration agreements were never...more

9/28/2015 - Arbitration Arbitration Agreements Decedent Protection Federal Arbitration Act Health Care Providers Healthcare Jury Trial KY Supreme Court Long Term Care Facilities Motion to Compel Nursing Homes Personal Property Power of Attorney Preemption Supremacy Clause Wrongful Death

To (b)(1) or not to (b)(1): What to Call your Rule 12 Arbitration Motion

Let’s say your client gets sued in court, the parties have an arbitration agreement, and you want to compel arbitration right away and not mess around with any other court proceedings. You already know you can make a motion...more

8/21/2015 - Arbitration Arbitration Agreements Federal Arbitration Act Federal Rule 12(b)(1) Federal Rule 12(b)(6) Motion to Compel

California Upholds Controversial Arbitration Clause Within Consumer Contract

California is changing its tune. Although previously known for decisions that flouted federal arbitration law, its decision yesterday in Sanchez shows the current California Supreme Court will abide by SCOTUS’s...more

8/5/2015 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion CA Supreme Court Class Action Consumers Legal Remedies Act Federal Arbitration Act Mercedes-Benz SCOTUS Waivers

State Courts Disagree About Incorporating Arbitration Agreements By Reference (Post #200!)

One way to challenge the very existence of an agreement to arbitrate is to say that the parties’ contract said nothing about arbitration and did not validly incorporate any other document calling for arbitration. Oklahoma...more

7/22/2015 - Arbitration Arbitration Agreements Automotive Industry Dispute Resolution Insurance Industry Mediation Motion to Compel

Should You Cut The Delegation Clause From Your Arbitration Agreement?

A recent report showed that less than half of arbitration agreements in the consumer financial arena include delegation clauses in their arbitration agreements. Two recent decisions from state high courts suggest that is a...more

7/15/2015 - Arbitration Arbitration Agreements Construction Contracts Construction Defects Delegation Clauses Dispute Resolution Federal Arbitration Act Homeowners SCOTUS Student Enrollments Unconscionable Contracts

Hawaii Finds Arbitration Agreement With “Severe Limitations on Discovery” is Unconscionable

Hawaii issued a bold arbitration decision this month. It applied its state contract law to conclude that the parties did not form a clear arbitration agreement, but even if they did, it was unconscionable because it...more

6/22/2015 - Arbitration Arbitration Agreements Corporate Counsel Declaration of Condominium Discovery Federal Arbitration Act Fiduciary Duty Mediation Punitive Damages Real Estate Market Unconscionable Contracts

A Modest Proposal: Change the Name of Arbitration

Arbitration has a brand recognition problem. Not enough people know what it is. The recent CFPB report summarized studies showing that even among consumers who know they have an arbitration clause, the majority do not...more

6/12/2015 - Arbitration Arbitration Agreements CFPB Consumer Financial Contracts Federal Arbitration Act Mediation

Defendant’s Failure To Pay Arbitration Fees Cannot Stymie Claims Against It

Usually, when faced with a respondent who refuses to pay its share of the arbitration fees, a claimant simply pays both sides’ fees, so that the arbitration can proceed. A new case out of the Tenth Circuit answers the...more

5/29/2015 - American Arbitration Association Arbitration Arbitration Agreements Motion To Stay

Spring Vacations: Which arguments are winning on appeals from arbitration so far in 2015?

Today I present a collection of recent state and federal appellate court decisions that vacate or un-vacate arbitration awards. The seven opinions below emphasize how difficult it is to prove that an arbitrator exceeded his...more

5/21/2015 - Appeals Arbitration Arbitration Agreements Arbitration Awards Collective Bargaining Damages DHS Elder Abuse FINRA Nursing Homes Oxford Health Reinsurance Title VII Vacated

Fifth Circuit Finds Parties Can Authorize Arbitrators By Their Conduct

The Fifth Circuit un-vacated an arbitration award last week, holding the district court had wrongly concluded that the court was the proper decision-maker on contract formation.  Although courts are presumptively authorized...more

5/13/2015 - Arbitration Arbitration Agreements Arbitration Awards Auction Broker Commissions Contract Terms Federal Arbitration Act Firearms Motion to Vacate

When Can A Party Recover Attorneys’ Fees Incurred Confirming An Arbitration Award?

If you won your arbitration, it is vexing to have to spend many thousands more in attorneys’ fees opposing a motion to vacate the arbitration award. (That is especially true if you signed up for arbitration thinking it was...more

5/7/2015 - Arbitration Arbitration Agreements Arbitration Awards Attorney's Fees Federal Arbitration Act Federal Aviation Administration (FAA) Motion to Vacate

Three State Courts Hold Timeliness Of Claim Is Issue For Arbitrator

In March, the highest courts of Montana, Texas, and Wisconsin all held that, when parties have a valid arbitration agreement, the issue of whether an arbitration demand was timely is presumptively for the arbitrator to...more

4/22/2015 - Arbitration Arbitration Agreements Arbitrators Statute of Limitations

Eighth Circuit Shows How Difficult It Is To Prove Arbitration Agreement Unconscionable Due To Cost

Almost two years ago in American Express Co. v. Italian Colors, SCOTUS significantly narrowed, but did not overrule, the “effective vindication” doctrine, which allows plaintiffs to invalidate an arbitration agreement if it...more

3/26/2015 - Arbitration Arbitration Agreements Franchise Agreements Putative Class Actions RICO

Eighth Circuit Finds Former Employees Lack Standing To Challenge Employer’s New Arbitration Policy

What’s one way to derail a potentially large collective action about Fair Labor Standards Act violations? To implement a new arbitration policy within days, thereby ensuring that your current employees cannot join the court...more

3/20/2015 - Arbitration Arbitration Agreements Collective Actions Employer Liability Issues FLSA Restaurant Industry

Rare Claim Falls Outside Arbitration Agreement, Creates Piecemeal Litigation

Because of the strong federal policy favoring arbitration, and cases providing that any doubt about the scope of an arbitration agreement must be resolved in favor of arbitration, it is uncommon to find a decision holding...more

2/9/2015 - Adverse Employment Action Arbitration Arbitration Agreements Family Businesses Shareholders Shareholders' Agreements

2014: The Year of Arbitrator Authority

A lot of interesting arbitration law was made this year, on topics from validity to vacatur, but the banner issue was arbitrator authority.  SCOTUS announced that theme for the year with its BG Group decision in March and...more

1/2/2015 - Arbitral Authority Arbitration Arbitration Agreements Arbitrators Barnes and Noble BG Group v Republic of Argentina Contract Formation Federal Arbitration Act General Mills Iskanian Robert Half SCOTUS SiriusXM

First Circuit Finds Plaintiff Waived Right to Arbitrate by Litigating for 9 Months

We haven’t had a good waiver case in a while. The First Circuit served one up last week with a flourish, teaching me multiple new words in the process (not for the first time, either). It found that a plaintiff had waived...more

12/12/2014 - Arbitration Arbitration Agreements Litigation Strategies Prejudice Waivers

Sirius XM Faces Class Action Because Arbitration Agreement Provided Late Is Invalid

A few months ago, the Ninth Circuit found that the arbitration agreement in Barnes & Noble’s website was not enforceable. This week, the Ninth Circuit found that the arbitration agreement Sirius XM Radio relied upon was not...more

11/14/2014 - Arbitration Arbitration Agreements Contract Formation Popular Putative Class Actions SiriusXM TCPA

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