Takeaway: We have written many articles about the use of consumer-facing terms containing mandatory arbitration agreements. “Clickwrap” agreements – agreements that require consumers affirmatively to accept terms – are the...more
Takeaway: We have written many articles about how businesses seek to enter enforceable arbitration agreements containing class action waivers with their customers, whether through “browsewrap” or “clickwrap” agreements or by...more
Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An Internet consumer must, at a minimum, be...more
Takeaway: We have written many articles about including class action waivers in consumer-facing arbitration agreements as a means of reducing class action litigation risk. The key to enforcing those waivers is the...more
Takeaway: We have written many articles about the implementation of arbitration agreements and class action waivers as mechanisms to reduce exposure to class action litigation. One of the most effective means of...more
Takeaway: In Morgan v. Sundance, Inc., --- S. Ct. ----, No. 21-328, 2022 WL 1611788 (May 23, 2022), the Supreme Court rejected the arbitration-specific rule requiring a finding of prejudice for a waiver of the right to...more
We have written a number of articles about California’s restrictions on arbitration agreements, including California’s “McGill rule,” which provides that arbitration agreements cannot waive claims for “public injunctive...more
Takeaway: One would think that “public injunctive relief” – especially under California law – would be a broad remedy. Not so, according to the majority opinion in Hodges v. Comcast Cable Communications, LLC, --- F.4th...more
Takeaway: Parties seeking to compel arbitration often rely on the rule that where an arbitration agreement contains broad language, any ambiguity about whether a claim must be arbitrated should be resolved in favor of...more
Takeaway: Parties seeking to compel arbitration often rely on the rule announced by the U.S. Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983), providing that where an...more
Takeaway: The concept of class arbitration has endured stiff headwinds. In Lamps Plus, Inc. v. Varella, 139 S. Ct. 1407 (2019), the Supreme Court ruled that a party cannot be required to participate in a class arbitration...more
Takeaway: We have recently written about the challenges involved in enforcing “browsewrap” contracts. See Internet terms of use: Ninth Circuit enforces arbitration agreement accessible through browsewrap hyperlink (August...more
Takeaway: We have written a number of articles about class arbitration. See, e.g., Fifth Circuit: arbitrator’s decision to conduct class arbitration cannot be vacated (May 11, 2020). A key issue is whether the parties’...more
Takeaway: The concept of class arbitration has recently faced stiff headwinds. In Lamps Plus, Inc. v. Varella, 139 S. Ct. 1407 (2019), the Supreme Court ruled that a party cannot be required to participate in a class...more
Recently, the Supreme Court imposed yet another roadblock to class arbitration in Lamps Plus, Inc. v. Varela. Relying on Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the Court ruled that ambiguous language in an...more
Takeaway: Adhesion contracts are ubiquitous in modern internet commerce, and the rules of contract formation are generally the same for paper and on-line contracts. Parties are generally bound by terms and conditions...more
In the aftermath of the Supreme Court’s decision in Lamps Plus, Inc. v. Varella, No. 17-988, 2019 WL 1780275 (U.S. Apr. 24, 2019), a lot of ink has been spilled on the issue of class arbitration. The Lamps Plus majority,...more
5/13/2019
/ Ambiguous ,
Appeals ,
Arbitration ,
Arbitration Agreements ,
Class Arbitration ,
Consent ,
Federal Arbitration Act ,
Federal v State Law Application ,
Lamps Plus Inc v Varela ,
Motion to Compel ,
Preemption ,
SCOTUS
Takeaway: Justice Kavanaugh’s first Supreme Court opinion is yet another High Court reminder that, when it comes to arbitration, the contract controls. If parties agree that an arbitrator should resolve the “gateway” issue...more
1/23/2019
/ Appeals ,
Arbitration ,
Arbitration Agreements ,
Arbitrators ,
Contract Terms ,
Exceptions ,
Federal Arbitration Act ,
Henry Schein Inc v Archer and White Sales Inc ,
Judicial Review ,
Motion to Compel ,
Question of Arbitrability ,
Remand ,
SCOTUS ,
Vacated ,
Wholly Groundless Doctrine
Takeaway: As we explored in a prior post (“Class arbitration – can it even work?”), conducting a class arbitration like most class actions – that is, giving absent class members notice and an opportunity to opt-out – may not...more
Takeaway: In the wake of the U.S. Supreme Court’s continued vigorous enforcement of class action waivers, more and more corporate parties can be expected to include broad class action waivers in their contracts with consumers...more
Courts continue to devote a lot of attention on the area of class arbitration. The U.S. Supreme Court has a case on its docket, the Eleventh Circuit just decided an issue of first impression, and another important case is...more
On April 30, the U.S. Supreme Court granted certiorari in two class action cases, on issues involving cy pres awards and class arbitration. Both cases arise out of the Ninth Circuit.
The Supreme Court’s decision in the cy...more
Takeaway: If you want to avoid exposure to class action litigation, you might think about putting an arbitration clause and class action waiver in your consumer-facing terms and conditions. But if you want those terms and...more
Takeaway: Technology advances. Business processes evolve. Contract formation, however, remains an old-fashioned concept. A party must have notice of and actually assent to a contractual provision to be bound by it. Where an...more