James Bogan III on Federal Arbitration Act

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

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)

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

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

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

James Bogan III

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