Liz Kramer

Liz Kramer

Stinson Leonard Street

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Second Circuit Clarifies That Arbitrable Claims Should Be Stayed, Not Dismissed

Parties who ask a court to compel arbitration of all the plaintiff’s claims have a decision to make: should they ask the court to stay the claims or dismiss them (if it finds them arbitrable)? After noting that the federal...more

7/30/2015 - Arbitration Dispute Resolution Federal Arbitration Act Motion to Compel Motion To Stay

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

Circuit Split Persists Regarding Whether Arbitrator’s “Manifest Disregard” Of Law Can Vacate Arbitration Award

Three years ago, this blog catalogued where all the federal circuits stood on the issue of whether an arbitration award that “manifestly disregarded the law” could be vacated under the Federal Arbitration Act, as that is not...more

6/25/2015 - Ameriprise Financial Arbitration Arbitration Awards Dispute Resolution Federal Arbitration Act Halliburton Manifest Disregard Mediation SCOTUS Section 10

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

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 FAA Federal Arbitration Act Motion to Vacate

Third Circuit Finds Pennsylvania Statute Preempted by FAA

The Third Circuit recently found that the Federal Arbitration Act preempts a Pennsylvania statute that restricts corporate plaintiffs in state and federal court in Pennsylvania to those companies that are registered to do...more

3/6/2015 - Federal Arbitration Act Preemption Principal Place of Business

Even in the Ninth Circuit, Courts Should Not Intervene Mid-Arbitration

It is generally accepted that courts may only engage in the very front and very back end of an arbitration. At the outset, courts may determine whether the parties agreed to arbitrate the dispute, and at the end, courts may...more

2/2/2015 - Arbitration Conflicts of Interest Federal Arbitration Act

Who Decides Whether New Claims Are Precluded By Old Arbitration? An Arbitrator, Says 2d Circuit

We all know that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) apply with equal force to both arbitration awards and court orders. But, if your adversary brings new claims that...more

1/23/2015 - Arbitration Arbitration Awards Arbitrators Citigroup Collateral Estoppel Federal Arbitration Act Issue Preclusion Res Judicata

SCOTUS Allows California to Interpret Federal Arbitration Act As Excluding Private Attorney General Claims

Today, the U.S. Supreme Court denied the petition for certiorari in the Iskanian case from the California Supreme Court. In doing so, SCOTUS allowed one of the most interesting Federal Arbitration Act interpretations in...more

1/21/2015 - Arbitration Enforcement Actions Federal Arbitration Act Iskanian Labor Code Petition for Writ of Certiorari Private Attorneys General Act Putative Class Actions SCOTUS

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 CarMax Contract Formation Federal Arbitration Act General Mills Iskanian Robert Half SCOTUS SiriusXM

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

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

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