Navigating Mass Arbitration: New Rules and Strategies — The Consumer Finance Podcast
Many construction contracts include provisions requiring the parties to arbitrate disputes relating to the contract or construction project rather than bringing their claims in a court of law. Often times, the arbitration...more
“Class arbitration” signifies the utilization of the Fed.R.Civ.P. 23 protocol in an arbitration proceeding. A fundamental question among many concerning the legal viability of “class arbitration” is whether an arbitrator can...more
In July 2018, our Construction Alert addressed the question of who decides the arbitrability of a dispute when your contract includes an arbitration clause. Is it a court or the arbitrator? How did the “wholly groundless”...more
Can arbitrators determine what issues they have the power to decide? According to the U.S. Supreme Court, they can, provided there is “clear and unmistakable evidence” the parties intended to delegate threshold questions to...more
On January 8, 2019, the US Supreme Court held in Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. --- (Jan. 8, 2019), that when a contract delegates to arbitrators the question whether a dispute is subject to...more
Opting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions,...more
After granting a motion to compel arbitration, should a court operating under the FAA stay or dismiss the pending judicial proceeding? While the federal circuit courts are split on the question, the better rule seems to be...more
Recent circuit court decisions have strategic implications for companies facing potential class arbitration claims. Key Points: - The Eighth and Ninth Circuits both found in separate cases that the authority to...more
As the optimistic wisdom of Dumb & Dumber’s Lloyd Christmas instructs, the chances of winning a motion to vacate an arbitration award may be “one in a million” . . . but “there’s a chance.” Originally published in IADC...more
We recently began a series of articles in which we ask whether “class arbitration” — meaning the utilization of a Federal Rule of Civil Procedure 23 class action protocol in an arbitration proceeding — is ultimately viable,...more
A decision allowing class-wide arbitration can transform a routine dispute into a “bet the company” problem. Who makes that decision: an arbitrator or a court? The Fourth Circuit Court of Appeals answered that question...more
Despite the numerous Supreme Court decisions limiting class arbitrations, one central issue remains undecided: who decides whether an arbitration agreement permits class arbitration, the courts or the arbitrators? Entities...more
Action Item: In a precedential opinion, the U.S. Court of Appeals for the Third Circuit outlined what is required for parties to allow arbitrators—rather than courts—to decide whether a matter could be arbitrated as a class....more