Liz Kramer

Liz Kramer

Stinson Leonard Street

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Unvacated: 11th Circuit Finds Repeat Arbitrator Not Biased

The Eleventh Circuit has a lesson for future litigants: the presence of a repeat player is not enough to show the evident partiality needed to vacate an arbitration award under the Federal Arbitration Act. In Johnson v....more

8/28/2015 - Advertising Arbitration Breach of Contract Federal Arbitration Act Motion to Vacate

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

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

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

Arbitration Fireworks: Three Federal Circuits Refuse To Compel Arbitration

Three federal appellate courts recently affirmed lower courts’ refusal to compel arbitration. These cases show that the federal policy favoring arbitration is not absolute – the parties must have agreed to arbitrate the...more

7/2/2015 - Antitrust Litigation Appeals Arbitration JPMorgan Chase Putative Class Actions UCC

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

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

Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute

The Supreme Court of Missouri has issued two significant arbitration decisions in recent weeks, showing its willingness to sever any aspects of an arbitration agreement that it finds unconscionable (while enforcing the...more

6/5/2015

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 - AAA 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 FAA Federal Arbitration Act 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

5th Circuit Vacates Arbitration Award Conducted By Wrong Arbitrator Under Wrong Rules

Let’s say your arbitration agreement calls for arbitration administered by JAMS under JAMS rules, but the arbitrator is independent and applies AAA rules, over one party’s objection.  A new decision from the Fifth Circuit...more

4/15/2015 - American Arbitration Association Arbitration Arbitration Awards Arbitrators Attorney's Fees Breach of Contract Insurers JAMS Vacated

6th Circuit Holds that Accountants Conducting Financial Arbitration Can Also Make Legal Determinations

A new case from the Sixth Circuit addresses whether accountants who are resolving a dispute about payments made under an agreement can also make legal determinations about the same agreement. In a 2-1 decision, the Sixth...more

4/9/2015 - Accountants Appraisal Clauses Arbitration Contract Disputes Contract Interpretation

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

SCOTUS Will Hear Arbitration Case in October Term

Just as I was beginning to worry that arbitration had fallen out of favor at the nation’s highest court… today the Supreme Court announced that it will hear the case of DIRECTV, Inc. v. Imburgia during its October Term, an...more

3/23/2015 - Arbitration Class Action Class Action Arbitration Waivers DirectTV DirecTV v Imburgia False Advertising SCOTUS

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

Beyond the Headlines Part II: What The New CFPB Report Teaches Us About Arbitration v. Litigation

In my last post, I shared some of the highlights from the first half of the new CFPB Arbitration Study.  This post covers the second half of the report, with juicy information gleaned from CFPB’s analysis of almost...more

3/13/2015 - Arbitration CFPB Class Action Consumer Financial Products

Beyond the Headlines Part I: What The New CFPB Report Teaches Us About Arbitration Clauses

The Consumer Financial Protection Bureau released an “Arbitration Study” exceeding 700 pages to Congress this week.  You have likely heard the headlines – most commentators assume that the CFPB will use the study to support...more

3/12/2015 - American Arbitration Association Arbitration CFPB Consumer Financial Products Contract Drafting Loan Agreements

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

Why The Arbitration Award Against Adrian Peterson Was Vacated

A federal judge in Minnesota today vacated the arbitration award that confirmed the NFL’s discipline of Adrian Peterson.  You can read the decision here.  The judge found two separate bases for vacating the award: 1) the...more

2/27/2015 - Arbitration Arbitration Awards CBAs NFL

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