James Bogan III on Arbitration

Conflicting online terms – E.D. Va. rules that “arbitrability delegation” clause requires that arbitrator resolve conflict

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

5/1/2024 / Arbitration , Arbitration Agreements , Clickwrap Agreements , Motion to Compel , Terms and Conditions

Second Circuit rules that “account update” mailed by bank failed to bind customer to arbitration agreement/class action waiver

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

1/31/2024 / Arbitration , Arbitration Agreements , Browsewrap Agreement , Class Action Arbitration Waivers , Clickwrap Agreements , Terms and Conditions

Second Circuit reverses district court, ruling that website interface provided reasonable notice of arbitration agreement and that...

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

12/1/2023 / Arbitration , Arbitration Agreements , Browsewrap Agreement , Class Action , Class Action Arbitration Waivers , Clickwrap Agreements , Terms and Conditions

District of Rhode Island invalidates “naked” class action waiver on public policy grounds

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

10/25/2023 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers

Seventh Circuit: disputed issues of fact require a trial on the issue of whether an account user received notice of an agreement...

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

9/29/2023 / Arbitration , Arbitration Agreements , Arbitration Awards , Class Action , Class Action Arbitration Waivers

SCOTUS grants cert. to determine whether an appeal of an order denying a motion to compel arbitration automatically stays district...

Takeaway: To control litigation risk, a business might include an arbitration clause and class action waiver in its consumer-facing terms and conditions. When a consumer files a putative class action against that business,...more

12/21/2022 / Arbitration , Certiorari , Motion to Compel , Putative Class Actions , SCOTUS

SCOTUS displays short memory in rejecting the prejudice requirement for waivers of the right to arbitrate

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

6/1/2022 / Arbitration , Arbitration Agreements , Employment Litigation , Federal Arbitration Act , Morgan v Sundance , Motion to Compel , SCOTUS , Waivers

SCOTUS to decide whether FAA preempts California’s prohibition on the arbitration of PAGA representative claims

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

12/20/2021 / Arbitration , Arbitration Agreements , Federal Arbitration Act , Preemption , Private Attorneys General Act (PAGA) , SCOTUS

Fifth Circuit examines mechanisms to secure federal jurisdiction in class action and arbitration contexts

Takeaway: When litigating class certification and motions to compel arbitration, defense attorneys virtually always prefer federal over state courts. In two cases involving home security provider ADT, L.L.C. (ADT), and a...more

12/20/2021 / Arbitration , Class Action , Class Certification , Federal Arbitration Act , Motion to Compel

Ninth Circuit reexamines California’s McGill rule – which prohibits contractual waivers of “public injunctive relief” – through...

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

9/28/2021 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Federal Arbitration Act , Injunctive Relief , Preemption , The McGill Rule

Second Circuit rules Trump parties forfeited arguments on appeal

Takeaway: The importance of preserving issues for appeal when litigating a case before a trial court – from the outset of the case all the way through post-trial motions – cannot be overstated. As a general matter, a...more

9/1/2021 / Appeals , Arbitration , Class Action , Donald Trump , Equitable Estoppel , Motion to Compel

Eleventh Circuit: arbitration clause broad enough to be “related to” post-termination dispute, but is it too broad to be...

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

5/28/2021 / Arbitration , Arbitration Agreements , Fair Credit Reporting Act (FCRA) , Motion to Compel

Second Circuit bypasses the “construe ambiguities in favor of arbitration” rule in reversing order compelling arbitration

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

4/1/2021 / Arbitration , Arbitration Agreements , Breach of Duty , Employee Retirement Income Security Act (ERISA) , Fiduciary Duty , Motion to Compel

Ninth Circuit holds public injunctive relief may be pursued by an individual in arbitration, thereby enforcing arbitration...

Takeaway: One of the most effective tools for a business to reduce its exposure to class action litigation is to include compulsory arbitration provisions and class action waivers in customer-facing contracts. But there are...more

3/1/2021 / Arbitration , Class Action , CLRA , Federal Arbitration Act , Unfair Competition Law (UCL)

Sixth Circuit: incorporation of AAA Rules delegates “gateway” issue of arbitrability to the arbitrator

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

7/1/2020 / American Arbitration Association , Arbitration , Arbitration Agreements , Class Arbitration

Fifth Circuit: arbitrator’s decision to conduct class arbitration cannot be vacated

Takeaway: A lot of ink has been spilled on the issue of class arbitration, but this much is clear: If a federal court decides the class arbitration issue, then the proponent of class arbitration should lose, unless the...more

5/11/2020 / Arbitration , Class Arbitration , Fair Labor Standards Act (FLSA) , Federal Arbitration Act , Vacated

Second Circuit endorses class arbitration

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

1/3/2020 / American Arbitration Association , Arbitration , Arbitration Agreements , Class Arbitration , Corporate Counsel

Class arbitration is – almost – dead

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

7/22/2019 / Arbitration , Arbitration Agreements , Class Arbitration , Federal Arbitration Act , Lamps Plus Inc v Varela

Ninth Circuit upholds arbitration provision testing the “outer limits” of what constitutes an enforceable arbitration agreement

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

6/17/2019 / Arbitration , Arbitration Agreements , Class Action , Contract of Adhesion

What the Lamps Plus court did not say about class arbitration

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

Arbitration Justice Kavanaugh eliminates wholly groundless exception to delegation clauses

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

The Lamps Plus oral argument suggests the U.S. Supreme Court may address the threshold issue of an arbitrator’s power to...

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

11/26/2018 / Arbitration , Arbitration Agreements , Class Action , Class Arbitration , Federal Arbitration Act

Reading between the lines: the Seventh Circuit’s recent class arbitrability ruling suggests a paradigm for squaring delegation...

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

11/26/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Corporate Counsel , NLRA , NLRB

Class arbitration – can it even work?

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

10/10/2018 / Arbitration , Arbitration Agreements , Class Arbitration , FRCP 23 , Opt-Outs

Ninth Circuit: If You Want An Arbitration Agreement Enforced, Don’t Try To Slide It By Later

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

4/4/2018 / Arbitration , Arbitration Agreements , Class Action Arbitration Waivers , Consumer Contracts

James Bogan III

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