Liz Kramer

Liz Kramer

Stinson Leonard Street

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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

Hawaii Finds Unilateral Arbitrator-Selection Provision Fundamentally Unfair

The Supreme Court of Hawai’i concluded last week that it is fundamentally unfair to allow one party to an arbitration agreement to unilaterally select the arbitral forum. Nishimura v. Gentry Homes, Ltd., __ P.3d__, 2014 WL...more

11/6/2014 - Arbitration Agreements Arbitrators Construction Contracts Construction Defects Construction Industry Forum Selection Clause General Contractors Putative Class Actions

Don’t Sign Your Spouse’s Arbitration Agreement, And Other Lessons From Non-Signatories

In three cases in recent months, courts have found that plaintiffs who did not sign an arbitration agreement (non-signatories) are not obligated to arbitrate. In all three cases, a key issue was that the plaintiff’s claims...more

11/3/2014 - Arbitration Arbitration Agreements Dispute Resolution Estate Planning

“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration

Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts “harmonize” language from...more

10/23/2014 - Arbitration Arbitration Agreements Contract Interpretation Motion to Compel

Minnesota Supreme Court Finds AAA Rules Give Arbitrator Power To Issue Sanctions Over $600 Million

The Minnesota Supreme Court today unanimously confirmed an arbitration award of over $600 million in punitive sanctions. Seagate Technology, LLC v. Western Digital Corp., (Minn. Oct. 8, 2014). Although the appellant argued...more

10/9/2014 - American Arbitration Association Arbitration Arbitration Agreements

Arkansas and New Jersey Sidestep Concepcion Hurdle and Declare Consumer Arbitrations Invalid

Two state supreme courts found consumer arbitration agreements unenforceable in the past week: Arkansas and New Jersey. Arkansas grounded its decision on the lack of mutuality in the consumer arbitration agreement (similar to...more

9/29/2014 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion Federal Arbitration Act Fraud

End Of The World As We Know It (for Employment Arbitration)?

Cue the R.E.M folks, because the Supreme Court of Missouri issued a 4-3 opinion recently that appears to upend many employment arbitration agreements in that state. Baker v. Bristol Care, Inc., __ S.W.3d__, 2014 WL 4086378...more

9/22/2014 - Arbitration Arbitration Agreements Federal Arbitration Act Putative Class Actions

Arbitration Agreement On Barnes & Noble’s Website Not Enforceable

In a case between an on-line customer and Barnes & Noble, the Ninth Circuit recently refused to enforce the arbitration agreement found in the website’s “Terms of Use.” Nguyen v. Barnes & Noble Inc., __ F.3d__, 2014 WL...more

9/11/2014 - Arbitration Arbitration Agreements Barnes and Noble Browsewrap Agreement Internet Retailers Retailers Terms of Use Websites

Seventh Circuit Finds Tribal Arbitration Is Unreasonable and Unconscionable

In a victory for advocates who worry that the odds are impossibly stacked against consumers in some arbitral fora, the Seventh Circuit found that a class of borrowers did not have to proceed with arbitration conducted by the...more

9/2/2014 - Arbitration Arbitration Agreements Forum Selection Clause Internet Lenders Native American Issues Usury

Nitty Gritty Advice for Compelling Arbitration under the FAA

I regularly receive questions about compelling arbitration under the Federal Arbitration Act. In particular, people ask : (1) Can I file a motion to compel before any other “complaint” is filed; (2) What should I call my...more

8/22/2014 - Arbitration Arbitration Agreements Federal Arbitration Act Mandatory Arbitration Clauses Young Lawyers

Arbitration Award Vacated Because Arbitrators Were Impartial

Although we usually expect arbitrators to be impartial, the Supreme Court of Texas vacated an arbitration award because the chosen arbitrators were too impartial. Americo Life, Inc. v. Myer, __S.W.3d__, 2014 WL 2789429 (Tex....more

7/16/2014 - American Arbitration Association Arbitration Arbitration Agreements Arbitration Awards Impartiality Vacated

Appellate Courts Saving Arbitration Agreements Right and Left

In recent weeks, four federal and state appellate courts have vacated district court decisions that denied motions to compel arbitration. The courts seem to be saying to defendants with arbitration agreements: don’t worry if...more

7/10/2014 - Arbitration Arbitration Agreements Corporate Counsel Federal Arbitration Act

Eighth Circuit Finds Incorporation Of AAA Rules Authorizes Arbitrator To Determine Whether Non-Signatory Can Arbitrate

In a short and sweet opinion issued just six weeks after argument, the Eighth Circuit yesterday held that an arbitrator was authorized to decide whether a non-signatory was able to arbitrate a dispute. Eckert/Wordell...more

7/2/2014 - American Arbitration Association Arbitration Arbitration Agreements Construction Industry Arbitration Rules Non-Signatories

First Things First: There Must Be An Arbitration Agreement In Order To Compel Arbitration

Two courts recently refused to compel arbitration because the defendants could not prove that the parties had entered into an arbitration agreement at all. Therefore, the musical accompaniment to this post is “Do Re Mi” from...more

6/11/2014 - Arbitration Arbitration Agreements Mandatory Arbitration Clauses

Two Federal Circuits Find Health Insurance Claims Outside Scope Of Arbitration Clauses

Because courts apply a presumption of arbitrability when they analyze whether particular claims fall within the scope of an arbitration clause, and arbitration clauses are generally drafted very broadly, I don’t usually get...more

5/9/2014 - Allstate Arbitration Arbitration Agreements CIGNA Health Insurance Healthcare Mandatory Arbitration Clauses Medical Devices

Third Circuit Finds Two Months Of Litigation Sufficient To Waive Right To Arbitrate

In a decision this week, the Third Circuit found two related parties had waived their right to arbitrate claims. One was no suprise — it had vigorously litigated the dispute for eleven months....more

5/5/2014 - Arbitration Arbitration Agreements Waivers

Three Lessons On Appealing From Arbitrations

Three decisions came out recently that offer guidance on appealing from arbitration awards. Here are three pearls of arbitration appeal wisdom, one from each case...more

4/18/2014 - Appeals Arbitration Arbitration Agreements

Arbitration Clauses Survive Their Contracts 99% Of The Time

The Sixth Circuit recently answered a question I get asked regularly: does an arbitration clause survive the termination of the contract containing it? I usually say yes, and thankfully the Sixth Circuit backed me up....more

4/1/2014 - Arbitration Arbitration Agreements Employment Contract FLSA Mandatory Arbitration Clauses Motion to Compel

Employer’s Attempt To Avoid Ongoing Collective Action By Forcing Potential Plaintiffs To Sign Arbitration Agreements Fails

In the past year, if I wrote about “FLSA” and “arbitration” in the same post, it likely meant that another federal court had found employers can include class action waivers in their employment contracts without violating the...more

4/1/2014 - Arbitration Arbitration Agreements Collective Actions FLSA

Incorporating Arbitration Agreements By Reference: The Key Is Reasonable Notice

In recent months, three federal circuit courts have confronted this question: can a defendant compel arbitration even in the absence of a signed written agreement containing an arbitration clause? The answers were yes, no,...more

1/22/2014 - Arbitration Arbitration Agreements Mandatory Arbitration Clauses Notice Requirements

What A-Rod Can Teach About A-rbitration

Arbitration is in the news. Not just a buried paragraph in the business section, but the front page. (A three-arbitrator panel issued a 34-page arbitration award finding Major League Baseball was justified in suspending...more

1/14/2014 - Arbitration Arbitration Agreements Arbitration Awards Federal Arbitration Act

The Easiest Arbitration Agreement To Avoid May Be The One Between Attorney And Client

The First and Ninth Circuits recently issued opinions concerning the validity of state laws requiring “informed consent” to, or “full disclosure” of, arbitration clauses in attorney retainer agreements. Although the First...more

12/24/2013 - Arbitration Arbitration Agreements Federal Arbitration Act Mandatory Arbitration Clauses

Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds For Vacating Award

In the Hall Street decision in 2008, SCOTUS held that parties could not contractually enlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that...more

12/19/2013 - Appeals Arbitration Arbitration Agreements Arbitration Awards Federal Arbitration Act Motion to Vacate

West Virginia Has A Change Of Heart About Arbitration

A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country. There was not an unconscionability argument that the state didn’t seem to buy with respect to...more

11/25/2013 - Arbitration Arbitration Agreements Employee Handbooks

Sixth Circuit Is First To Find Availability Of Class Arbitration Is Gateway Issue To Be Decided By Courts

Just four months ago, SCOTUS suggested (but did not hold) that the decision to allow class arbitrations might be a “gateway” issue of arbitrability that defaults to courts. This week, the Sixth Circuit was the first to take...more

11/11/2013 - Arbitration Arbitration Agreements Class Action Contract Drafting SCOTUS

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