The Oklahoma Supreme Court Gets Spooked, Refuses to Enforce a Consumer Arbitration Agreement
Arbitration Nation | Federal Arbitration Act Updates
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3y ago
Just in time for the Halloween season, the Oklahoma Supreme Court gives us a scary tale about buying a new car.  In Sutton v. David Stanley Chevrolet, Inc., 2020 OK 87, ¶ 1 the Court finds that an arbitration clause in a consumer contract was induced by fraud because the structure of the transaction was misleading. Spooooooky! No, seriously.  It is a little scary, at least for any businesses that use form contracts. Without too many spoilers, I think of the impact of this case in terms of a quote the Court uses: The law is not designed to protect the vigilant, or tolerably vigilant ..read more
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Cert Granted in a New(ish) Arbitration case —Henry Schein Part II
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
Welcome back to ArbitrationNation after a pandemic and protests hiatus.  I hope that you and your families are safe and that you’re confronting and coping with the injustices of our world. I’m glad to have a good reason to write about arbitration again.  I’ve got a boatload of arbitration developments and cases to catch up on in the coming weeks.  But there’s no better day to get rolling than on a day that SCOTUS grants cert on a new(ish) arbitration case—Henry Schein, Inc. v. Archer and While Sales, Inc. Part II: Revenge of the Wholly Groundless Doctrine’s Zombie. Yea ..read more
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Arbitration 101: Arbitrator Disclosures (and Repeat Players)
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
I have to confess something: I just returned from sunny California where I attended an excellent arbitrator training course put on by the American Arbitration Association and run by Dana Welch and Michael Powell!  If you have an opportunity to take a course from either of them, I highly recommend it. And, as it so happens, you can!  Check out my prior announcement of the ABA’s Arbitration Institute this March in Phoenix.  Dana Welch will be there along with a number of other exceptional instructors.  I’ll give you a more formal reminder soon, but it’s well worth your time to think about attend ..read more
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More on Class Arbitrability, Even Though It’s So Last Decade
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
Welcome to 2020! I hope that you all had a safe and rejuvenating holiday season.  A new decade brings us plenty of new opportunities for thrilling arbitration news and developments! But, up first, more on class arbitrability.  I know.  I know.  So last decade.  But trust me, this is a case you want to keep an eye on, Jock v. Sterling Jewelers Inc., 942 F.3d 617 (2d Cir. 2019).  I’m not a betting fellow, but if I were, I’d put money on the issues raised by the case inspiring cert in the near future. The Sterling Jewelers matter has found its way to the Second Circuit four times, so this isn’t e ..read more
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Arbitration 101: Uber and (a Failed) Equitable Estoppel Argument
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
Seems like I’m picking on the gig economy these days.  I really don’t mean to be.  But a former research assistant of mine brought an important, hot-off-the-presses decision to my attention, O’Hanlon v. Uber Techs., Inc., No. 2:19-cv-00675, 2019 BL 434840 (W.D. Pa. Nov. 12, 2019). The case presents a couple of important Arbitration 101 reminders, including one about equitable estoppel in the context of arbitration. The plaintiffs brought a class action against Uber, alleging that it violated Title III of the Americans with Disabilities Act because it failed to provide any wheelchair accessible ..read more
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DoorDash TROs Signal a New Frontier in Mass Individual Arbitrations
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
Happy December!  I hope that everyone has had a restful and well-earned holiday weekend break. There’s a lot of new and exciting stuff happening in the world of arbitration, and I have some catching up to do.  I want to start, though, in an unorthodox place. We rarely write about early litigation actions on this blog, but there’s something very interesting happening in California.  A law firm there has taken action to protect its effort to engage in mass individual arbitrations on behalf of a large group of clients.  In two different actions – one in the California Superior Court (Boyd v. Door ..read more
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Non-Parties Must be Physically in the Same Room as Arbitrators
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
I don’t mean to be imprecise, but I think that the Eleventh Circuit may have recently issued the most luddite opinion I’ve seen in a good long while.  See Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 2019 WL 4464301 (11th Cir. Sept. 18, 2019).  According to the court, Section 7 of the FAA, which allows arbitrators to subpoena non-parties and their documents, must be interpreted narrowly.  And when I say narrowly, the Eleventh Circuit isn’t joking around. Arbitrators can only require summonsed non-parties to appear in the physical presence of the arbitrator.  This means literal p ..read more
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ArbitrationNation Bookworm: Professor Jean Sternlight on Mandatory Arbitration
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
For the next installment of the Bookworm, I’m recommending a very recent article by Professor Jean Sternlight: Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where To, #MeToo?. For anyone who isn’t already familiar with her work, Professor Sternlight has been at the forefront of thinking about adhesive arbitration for at least two decades.  Her  articles are at the bedrock of any critical appraisal of consumer, employee, and patient arbitration.  Her 1996 piece, Panacea or Corporate Tool – Debunking the Supreme Court’s Preference for Binding Arbitration, defined, in ..read more
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DOJ Turns to Arbitration in an Antitrust Case
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
Four weeks ago, the boundary between public enforcement and private dispute resolution became more blurred.  On September 4, the Justice Department announced that it had agreed to binding arbitration on the key issue in a current merger case—the market definition. The enforcement action is garden variety.  It challenges Novelis Inc.’s proposed acquisition of Aleris Corporation.  According to the DOJ, the transaction would combine two of only four North American producers of aluminum auto body sheet, which automakers use to produce aluminum parts for automobiles. But the use of arbitration by t ..read more
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New Prime’s Early Legacy: Uber Drivers May be Able to Avoid Arbitration
Arbitration Nation | Federal Arbitration Act Updates
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4y ago
The Third Circuit welcomed us to the fall arbitration season with an important decision for the gig economy, Singh v. Uber Techs. Inc., 2019 WL 4282185 (3d Cir. Sept. 11, 2019).  Relying on the key logic of SCOTUS’s January ruling in New Prime, Inc. v. Oliveira, the Third Circuit concluded that Uber drivers may qualify FAA § 1’s exemption for “any other class of workers engaged in foreign or interstate commerce.”  I say “may qualify” because the Third Circuit technically remanded the case. This is an important one, so it’s worth thinking through it carefully.  There at least three key takeaway ..read more
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