Liz Kramer

Liz Kramer

Stinson Leonard Street

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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

ArbitrationNation’s Third Anniversary Threesome

After 155 posts, can there possibly be more to say? Yes, indeed. Three new opinions from federal courts of appeals demonstrate how new issues keep “cropping” up in arbitration law each week....more

8/15/2014 - AAA Arbitration Federal Arbitration Act

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

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

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

Dodd-Frank Only Precludes Arbitration Of Whistleblower Actions

The Fourth Circuit found this week that the Dodd-Frank Act did not override all arbitration agreements betwen publicly-traded employers and their employees. Santoro v. Accenture Federal Servs., LLC, 2014 WL 1759072 (4th Cir....more

5/9/2014 - Accenture Age Discrimination Dodd-Frank Federal Arbitration Act Publicly-Traded Companies Whistleblowers

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

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

SCOTUS Will Not Reconsider Fate Of Delaware’s Business Arbitrations; NLRB’s Class Action Arbitration Decision Loses Again

SCOTUS announced today that it would not review the Third Circuit’s decision in Strine v. Delaware Coalition for Open Government, Inc, holding that Delaware’s Chancery Court could not offer its judges’ services as neutral...more

3/24/2014 - Arbitrators Class Action Collective Actions Federal Arbitration Act FLSA NLRB SCOTUS

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

“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

Two Circuit Courts Demonstrate How Difficult It Is To Vacate Arbitration Awards

The Second Circuit decision has more drama, so I’ll start there. In Kolel Beth Yechiel Mechil of Tartik-Ov, Inc. v. YLL Irrevocable Trust, __ F.3d __, 2013 WL 4609100 (2d Cir. Aug. 30, 2013), the losing party in an...more

9/26/2013 - Arbitration Arbitration Agreements Arbitration Awards Collective Bargaining Federal Arbitration Act Issue Preclusion Unions

First State Court Decision Is Reversed Under SCOTUS’ Amex Ruling

Put this post in the “I called it” category - On June 12, the Massachusetts Supreme Judicial Court declared in Feeney that class arbitration waivers are invalid under Massachusetts law if plaintiffs cannot effectively...more

8/6/2013 - American Express American Express v Italian Colors Restaurant Arbitration Class Action Class Action Arbitration Waivers Federal Arbitration Act SCOTUS

Court Affirms Arbitrator’s Decision To Preclude Party From Defending Against Claim As Sanction For Fabricating Evidence

In a decision that confirms arbitrators’ broad discretion to not only fashion remedies, but also fashion sanctions, the Minnesota Court of Appeals held that an arbitrator did not exceed his power by issuing a severe sanction:...more

7/24/2013 - Arbitration Arbitrators Claim Preclusion Evidence Federal Arbitration Act Sanctions

If “Grave Error” Is Not Enough To Vacate An Arbitrator’s Decision, What Is?

The recent Sutter decision drives home repeatedly that a court may not vacate an arbitrator’s decision under the FAA just because a judge thinks the arbitrator reached the wrong result. ...more

7/11/2013 - Arbitration Arbitrators Binding Arbitration Federal Arbitration Act Plain Error

Employment Class And Collective Action Insight: U.S. Supreme Court Holds That Arbitration Class-Action Waivers Are Valid, Even If...

On June 20, 2013, in American Express Co. v. Italian Colors Restaurant, the U.S. Supreme Court held that, under the Federal Arbitration Act, courts cannot invalidate a class arbitration waiver on the ground that the...more

6/26/2013 - American Express American Express v Italian Colors Restaurant Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers Federal Arbitration Act SCOTUS

SCOTUS Says “Tough Luck” To Plaintiffs Whose Claims Are Too Pricey To Prove In Individual Arbitrations

In American Express Co. v. Italian Colors Restaurant, a divided Supreme Court today reversed the Second Circuit and held that plaintiffs may not invalidate an arbitration agreement containing a class action waiver merely...more

6/21/2013 - American Express American Express v Italian Colors Restaurant Arbitration Arbitration Agreements Class Action Federal Arbitration Act Legal Costs SCOTUS Sherman Act The Clayton Act Waivers

SCOTUS Affirms Arbitrator’s Decision To Allow Class Arbitration In Sutter

The U.S. Supreme Court issued its decision in Sutter today, unanimously holding that as long as the arbitrator bases a decision to allow or disallow class arbitration on the text of the parties’ agreement, her “construction...more

6/11/2013 - Arbitration Awards Class Arbitration Federal Arbitration Act Oxford Health v Sutter SCOTUS Sutter

Arbitrator’s Creative IP Remedy Upheld Because It Furthered “General Aims Of Agreement”

In a dispute over whether an arbitrator has authority to grant a video game developer and publisher a perpetual license in the intellectual property as a remedy for the developer’s fraud and breaches of contract, the Fifth...more

4/26/2013 - Arbitration Arbitration Agreements Arbitration Awards Federal Arbitration Act Fraud Remedies Video Games

Ninth Circuit Revives California Law That Allows Plaintiffs Seeking Injunctive Relief To Avoid Arbitration

More than one year ago, a three-judge panel of the Ninth Circuit determined that California case law, which precluded arbitration of claims asking for public injunctive relief, was preempted by the Federal Arbitration Act. ...more

4/18/2013 - Arbitration Federal Arbitration Act Injunctions Preemption Remedies

SCOTUS Struggles With Standard Of Review For Arbitrator’s Decision To Allow Class Arbitration

While the oral argument before the United States Supreme Court in Sutter today was ostensibly about whether to affirm an arbitrator’s decision that the parties’ contract authorized class arbitration, the decision really turns...more

3/26/2013 - Arbitration Arbitration Agreements Class Action Class Certification Federal Arbitration Act SCOTUS Standard of Review

Seventh Circuit Is Sick Of Arbitration Appeals; Threatens “High Risk Of Sanctions”

In an opinion released yesterday, the Seventh Circuit schooled appellant’s counsel first on the application of the New York Convention and Panama Convention, then on the high standard of review it applies to commercial...more

3/20/2013 - Arbitration Arbitration Awards Federal Arbitration Act Motion to Vacate Sanctions

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