Liz Kramer

Liz Kramer

Stinson Leonard Street

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Final Means Final: No Reconsideration in Arbitration

Recent decisions from the 3d and 11th Circuits drive home this point: an arbitration award is final and should not be revisited. In Robinson v. Littlefield, 2015 WL 5520017 (3d Cir. Sept. 17, 2015), the parties...more

11/20/2015 - American Arbitration Association Arbitration Arbitration Awards Corporate Counsel Motion for Reconsideration Young Lawyers

Nevada Says Rule 68’s Offer of Judgment Applies In Arbitration

Today’s post is a good one for all those defendants/ respondents who are convinced that they have a slam-dunk case and want to recover their attorneys’ fees.  Because while these particular respondents were not successful,...more

11/16/2015 - American Arbitration Association Arbitration Attorney's Fees Rule 68

Same Arbitration Story, Different Jurisdiction: NAF, NLRB, and Nursing Homes

Some arbitration topics just never die. This post strings together new cases on three of those topics: 1) whether arbitration agreements that call for the now-defunct National Arbitration Forum (NAF) are enforceable; 2)...more

11/9/2015 - AL Supreme Court Arbitration Class Action Arbitration Waivers D.R. Horton v NLRB Murphy Oil USA NLRB Nursing Homes PA Supreme Court

“Older Workers” Do Not Have To Arbitrate Statutory Employment Claim

Arbitration is having its 15 minutes of fame. Thanks to a series in the New York Times, my inbox is full of links to the articles, questions about the information, and fascinating commentary. [Next time I am in Oakland, I...more

11/2/2015 - ADEA Arbitration CFPB Class Action Class Action Arbitration Waivers Collective Actions Consumer Financial Products Federal Arbitration Act General Mills New York Times OWBPA

CFPB Likely To Require Access To Class Actions And Data On Individual Arbitrations

Richard Cordray, Director of the Consumer Financial Protection Bureau, has positioned himself as the Boogeyman that financial companies fear this Halloween season. Earlier this month, the CFPB outlined the proposals under...more

10/23/2015 - American Arbitration Association Arbitration Arbitration Agreements Banking Sector Banks CFPB Class Action Class Action Arbitration Waivers Consumer Financial Products Dodd-Frank Financial Institutions Financial Transactions FINRA

Arbitration Puzzler: Nevada’s Anti-Waiver Rule Preempted; California’s Anti-Waiver Rule Not Preempted

Two opinions came out recently in disputes over the arbitrability of putative class actions alleging that employees were not paid for overtime (and other labor violations). In one, the Nevada Supreme Court acknowledged that...more

10/8/2015 - Arbitration AT&T Mobility AT&T Mobility v Concepcion Class Action Class Action Arbitration Waivers Federal Arbitration Act Iskanian Iskanian v CLS Transportation NLRA NLRB NV Supreme Court Preemption Putative Class Actions SCOTUS Unconscionable Contracts Unpaid Overtime Wage and Hour

SCOTUS Selects Second Arbitration Case For 2015 Term

2015 was a dry spell in arbitration decisions from the U.S. Supreme Court, but 2016 promises to be much more interesting. In addition to the California case being heard next week, SCOTUS just granted certiorari over another...more

10/2/2015 - Arbitration Arbitration Agreements AT&T Mobility AT&T Mobility v Concepcion CA Supreme Court Certiorari Federal Arbitration Act Independent Contractors Military Service Members Misclassification Motion to Compel SCOTUS Severability Doctrine

Kentucky Supreme Court Compares Giving Up Jury Trial To Giving Up Parental Rights; Refuses To Enforce Arbitration

Nursing home arbitration agreements are among the most unpopular arbitration agreements around.  Last week, Kentucky’s Supreme Court issued a lengthy, but fractured, opinion, finding three arbitration agreements were never...more

9/28/2015 - Arbitration Arbitration Agreements Decedent Protection Federal Arbitration Act Health Care Providers Healthcare Jury Trial KY Supreme Court Long Term Care Facilities Motion to Compel Nursing Homes Personal Property Power of Attorney Preemption Supremacy Clause Wrongful Death

Filing Claim In Court Is Not Enough To Waive Arbitration Right

The issue in analyzing whether a party waived its right to arbitrate is usually whether the defendant waited too long to assert the arbitration obligation.  But, this week the Second Circuit had the opportunity to address...more

9/21/2015 - AL Supreme Court Arbitration LG Electronics Rule 26 Waiver Rule

Musings on Tom Brady and Arbitrator Bias

Again this year, a famous athlete put the spotlight on the process of arbitration.  Earlier this month, Tom Brady succeeded in convincing a federal judge to vacate the arbitration award against Brady.  (The four-game...more

9/14/2015 - Arbitration Arbitration Awards Deflategate Federal Arbitration Act Football New England Patriots NFL Tom Brady Work Suspensions

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


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 - American Arbitration Association 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 Federal Arbitration Act Federal Aviation Administration (FAA) Motion to Vacate

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