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: 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
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
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
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
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
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: 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