Mandatory Arbitration Clauses

News & Analysis as of

A Summary of Comments From the DOL Hearing on the Proposed Conflict of Interest Rule

On August 13, 2015, the Department of Labor (the “DOL”) concluded a four day public hearing on its proposed conflict of interest rule (the “Proposed Rule”). The approximately 75 witnesses generally fell into two groups: the...more

How Not To Write An Employment Agreement Arbitration Clause: Court Of Appeal Rejects One Sided Clause As Procedurally And...

In Carlson v. Home Team Pest Defense, Inc. (Ct. of Appeal A142219), published August 17, 2015, the Court of Appeal held that an employer’s arbitration clause which allowed only the employer to file lawsuits for certain...more

Can Arbitrators Rule On Their Own Jurisdiction? The Ninth Circuit Answers Yes

In Brennan v. Opus Bank (9th Cir. 13-35580), published August 11, 2015, the Ninth Circuit ruled on the issue of whether a court versus an arbitrator has jurisdiction over determining the enforceability of a mandatory...more

Petrobras Shareholders’ Brazilian-Law Claims Are Subject to Mandatory Arbitration Provision

The travails of Petrobras have generated a lot of attention – and litigation – in the past year. On July 30, 2015, District Judge Jed Rakoff, of the Southern District of New York, issued an opinion explaining his prior order...more

Federal Arbitration Case Update | Cox and the Courtroom

Following is an interesting and recent federal court ruling related to arbitration. Litigation Activity Results in Waiver of Right to Arbitrate - Healy v. Cox Communications - United States Court of Appeals, Tenth...more

Department of Defense Issues Final Rule Expanding Military Lending Act to Credit Cards and Other Consumer Lending Products

On July 21, 2015, the U.S. Department of Defense (“DOD”) announced the final rule amending the Military Lending Act’s (“MLA”) implementing regulations. The changes apply the MLA’s strict lending restrictions to consumer...more

CFPB’s Corday Reiterates Intent to Pursue Rulemaking on Consumer Arbitration Clauses, Despite Opposition

In testimony before the Senate Committee on Banking, Housing & Urban Affairs on July 15, CFPB Director Richard Cordray affirmed the Bureau’s intention to proceed with rulemaking governing arbitration clauses in consumer...more

Maryland High Court: Mandatory Arbitration Hinges on “Entire Agreement,” Not “Single-Document Rule”

A mandatory arbitration provision is enforceable even when not contained within the four corners of a retail installment sales contract between a consumer and an automobile dealer, Maryland's highest court has ruled....more

Expect Focus - ONLINE HEALTH CARE: NOT SO FAST Telemedicine Hits A Few Speed Bumps, Volume II, Spring 2015

In This Issue: - IN THE SPOTLIGHT • Risky Business: Common Cyber Security Risks, Expensive Consequences - LIFE INSURANCE • Ninth Circuit Finds Bonus Indexed Annuity Delivers Exactly...more

Missouri Supreme Court “Calls an Audible,” Upholds Arbitration Agreement

In recent years, Missouri courts have seemed reluctant to enforce arbitration agreements entered into between employers and employees. But in a recent decision, the Missouri Supreme Court reversed that trend and compelled...more

Tennessee Supremes Reject Per Se Unconscionability of Non-Mutual Arbitration Clauses

On June 5, the Tennessee Supreme Court rejected a per se rule of unconscionability for non-mutual arbitration clauses, holding them enforceable if not too-one-sided and commercially reasonable under the...more

Now is the time to reevaluate commercial sales contracts that incorporate other documents by reference

Legal documents of all kinds – everything from wills and trusts to commercial sales agreements – often reference other documents. This “incorporation by reference” comes with certain risks. Historically, courts looked beyond...more

DOL Issues Guidance on Contractor Compliance Executive Order

Last year, President Obama issued Executive Order 13,673, entitled the Fair Pay and Safe Workplace Order. The Order requires prospective and active federal contractors to disclose violations of 14 federal labor and related...more

With Rule-Making Expected, CFPB’s March 2015 Arbitration Study Continues to Draw Attention

In a recent letter, 58 members of Congress asked the Consumer Financial Protection Bureau (CFPB) to exercise its rule-making authority and ban mandatory arbitration provisions in consumer financial agreements. In support of...more

FTC Continues To Ban Mandatory Arbitration in Magnuson-Moss Warranty Claims

The Federal Trade Commission (FTC) recently announced its decision to retain a ban on mandatory arbitration provisions in warranty claims made under the Magnuson-Moss Warranty Act (MMWA). The FTC’s decision was announced in...more

Seven Tips for Crafting an Effective Arbitration Clause (Part 3 of 3)

So you’ve decided that arbitration is preferable to traditional court litigation. It’s time to spell that out in your contract. That means crafting an effective clause that will maximize the advantages of arbitration while...more

Legislation Proposed to Ban Mandatory Arbitration Clauses

On April 29, 2015, Senator Al Franken (D-MN) and Representative Hank Johnson (D-GA) introduced the Arbitration Fairness Act of 2015 (AFA), which would amend the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (FAA), by...more

CFPB Study May Pave The Way For Class Actions Against Consumer Financial Products Companies

The Consumer Financial Protection Bureau (CFPB) recently released a study examining the prevalence, perception and effects of arbitration clauses in contracts for consumer financial products. Although the study purports to be...more

CFPB Releases Arbitration Study; Is Regulation Far Behind

Why it matters - The Consumer Financial Protection Bureau (CFPB) released its long-awaited study of arbitration clauses in consumer finance agreements, reporting that based on its research, such provisions have the...more

Banking & Financial Services E -Note - March 2015

In This issue: - 6 Things You Need to Know Before Filing Chapter 11 Bankruptcy - Don’t Get Left in the Dark: Pre-eviction Noticing Requirements Following Sunset on the Protecting Tenants at Foreclosure...more

Recent Cases Provide Helpful Reminders Regarding Best Practices (and Pitfalls) with Employment Arbitration Clauses

Scrutiny of mandatory, pre-employment arbitration agreements continues before California state and federal courts. Several recent decisions provide helpful reminders for employers drafting, reviewing or enforcing arbitration...more

Lewis v. Aimco Properties, L.P, et al., C.A. No. 9934-VCP (Del. Ch. Feb. 10, 2015) (Parsons, V.C.)

In this memorandum opinion, the Court of Chancery (i) granted in part certain defendants’ motion to dismiss for lack of subject matter jurisdiction, specifically ordering a stay pending arbitration; and (ii) granted certain...more

California court Refuses To Enforce Bylaw Amendment Compelling Arbitration By the Members Of The Corporation

There have been several recent Delaware court decisions and much commentary regarding the enforceability of bylaw provisions that establish rules governing stockholder litigation, including fee-shifting provisions and forum...more

CFPB 2015 Arbitration Study: coming curbs on consumer financial services contract arbitration provisions - 6 steps for businesses

The Consumer Financial Protection Bureau (the CFPB) 2015 Arbitration Study, released yesterday in conjunction with a speech by CFPB Director Richard Cordray, lays the groundwork for rule making to broadly restrict the use of...more

CFPB Releases Arbitration Study Report to Congress

On March 10, the Consumer Financial Protection Bureau (CFPB) released its long-awaited, statutorily-mandated report to Congress on the use of pre-dispute arbitration provisions in consumer financial products. As we predicted...more

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