Liz Kramer

Liz Kramer

Stinson Leonard Street

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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

California Maintains Some Restrictions On The Waivers Allowable In Employment Arbitration Agreements

This week the Supreme Court of California held that the FAA preempts California’s 2007 Gentry ruling, one that protected employees from nearly all class action waivers in arbitration agreements. Iskanian v. CLS Transp. Los...more

6/26/2014 - Arbitration Class Action Class Action Arbitration Waivers CLS Transportation Employer Liability Issues Employment Contract Federal Arbitration Act Iskanian Mandatory Arbitration Clauses PAGA Trucking Industry

Alabama Confirms Arbitrators’ Grant of Judgment As A Matter of Law

Just as SCOTUS held its nose and confirmed an arbitration award it thought stunk in Sutter, the Supreme Court of Alabama has confirmed an arbitration award made after only the claimant presented evidence and grounded in a...more

6/17/2014 - Arbitration Arbitration Awards Ernst & Young Federal Arbitration Act

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

Court Vacates $125M Award Due To Arbitrator’s Misleading Disclosures

Today we take a close look at that rare creature: an opinion finding sufficient basis under the FAA to vacate an arbitration award. In Tenaska Energy Inc. v. Ponderosa Pine Energy, LLC, __S.W.3d __, 2014 WL 2139215 (Tex. May...more

6/2/2014 - Arbitration Arbitrators Disclosure Federal Arbitration Act Misleading Statements

Labor Arbitrator Authorized To Void Agreement Based On Mutual Mistake

This week the Eighth Circuit confronted an interesting question: if a union member believed he failed a drug test, and therefore agreed his employer could terminate him if he tested positive again, can the arbitrator...more

5/16/2014 - Arbitration Arbitrators Last Chance Agreements Mistake Unions

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

A Motion To Compel Arbitration “Answers” A Complaint

I field a lot of good procedural questions about how arbitration pleadings should be styled. Some of them are answered within the text of the FAA, but many of them leave clerks of court and practitioners scratching their...more

4/28/2014 - Arbitration Federal Arbitration Act Motion to Compel

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

Tenth Circuit Clarifies When Trial Is Necessary To Determine Arbitrability

In a beautifully written opinion, the Tenth Circuit examined an under-used aspect of the Federal Arbitration Act this week: having a jury or court trial. Usually disputes about arbitrability can be determined on a motion akin...more

4/17/2014 - Arbitration Federal Arbitration Act Trials

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

CFPB’s Preliminary Report: Financial Consumers Can Only Avoid Arbitration By Using A Credit Union

Say it’s twenty degrees below zero outside, and you’d already seen boiling water turn into “snow” immediately upon making contact with the air, what would you do next? Assuming you were all caught up on your Words With...more

1/8/2014 - American Arbitration Association Arbitration Banking Sector CFPB Class Arbitration Contract Drafting Credit Unions Dispute Resolution Dodd-Frank Financial Companies Financial Regulatory Reform Mandatory Arbitration Clauses

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

Fifth Circuit Overrules NLRB, Finds D.R. Horton May Preclude Class Arbitration

After three federal circuits had already refused to defer to the NLRB’s decision in D.R. Horton, it is not surprising that the Fifth Circuit yesterday overruled the NLRB’s critical holding: that precluding class arbitrations...more

12/5/2013 - Arbitration Class Action Class Action Arbitration Waivers D.R. Horton D.R. Horton v NLRB NLRA NLRB

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

“Manifest Disregard Of The Law” Is Alive And Well And Vacating Arbitrations In Fourth Circuit

The Federal Arbitration Act sets forth only four bases for vacating arbitration awards. See 9 U.S.C. § 10 (a). After SCOTUS’s 2008 decision in Hall Street, at least half of the circuit courts have concluded that those four...more

11/7/2013 - Arbitration Arbitration Awards Contract Interpretation Federal Arbitration Act

Halloween Special: Scary Results If Employers Overreach In Arbitration Clauses

No haunted house can scare general counsel as much as an opinion invalidating their company’s arbitration clause and thereby allowing a class action to proceed. So, here is a Halloween tale for all to keep in mind....more

11/1/2013 - Arbitration Arbitration Agreements Class Action Contract Drafting Corporate Counsel Halloween Unconscionable Contracts

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