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The interplay of the separability doctrine and delegation clauses can create a bullseye that only Hawkeye, the OG Avenger with a bow, might have a prayer of hitting.  The Missouri Supreme Court provided a nice reminder about this problem in a recent case, State Ex Rel. Newberry v. Jackson, 2019 WL 2181859 (May 21, 2019). The underlying facts of the case are simple enough: employees filed timely charges of sex, age, and disability discrimination…
If you’re in California or looking for a good reason to get to Malibu (like you need a good reason besides the fact that it’s Malibu), you should think about an upcoming dispute resolution conference on June 18-19 at the Straus Institute for Dispute Resolution at Pepperdine School of Law. The conference, entitled Appreciating Our Legacy and Engaging the Future: An International Conference for Dispute ResolutionTeachers, Scholars, and Leaders, will bring together leading dispute resolution teachers, scholars,…
The Second Circuit just reminded us that there’s nothing magical about the label “arbitration” and, despite it being a good idea to include it, there’s nothing magical about using – or failing to use – phrases like “final and binding” in an arbitral clause. In Milligan v. CCC Information Services, Inc., 920 F.3d 146 (2d Cir. 2019), the court was faced with an appraisal process in an auto insurance policy.  The underlying dispute involved…
This week, we’ll get to the nitty gritty of a topic that can be extremely relevant to litigators: the law applicable to determine the preclusive effect of an arbitral award. If something’s been arbitrated, it generally cannot be relitigated. In other words, arbitral awards usually have preclusive effect.  There’s not much controversy about this much. But what law determines the preclusive effect of the arbitral award?  At least with respect to awards that have been…
My students are sometimes surprised to learn that statutory rights are, with a handful of very minor exceptions, fully arbitrable.  That surprise often turns to indignation when they read Justice Scalia’s majority opinion in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and realize that this is true even absent class-wide proceedings.  Without aggregative process, of course, the enforcement many statutory rights becomes prohibitively expensive.  But Italian Colors makes it clear…
It’s not at all evident to me why SCOTUS felt the need to grant review of Lamps Plus, Inc. v. Varela. But it did. And the majority decision, authored by Chief Justice Roberts, did precisely what I think that everyone who looked at the case expected: it held that courts cannot find the necessary consent to class arbitration in an ambiguous arbitration clause. (See Liz’s prediction, for instance (“In my view, the issue…
One of arbitration’s supposed virtues is that it’s fast and simple – streamlined, as many courts are fond of saying.  As a consequence, arbitral awards generally do not need to be supported by any reasoning or rationale.  Unless the parties have requested a specific form of award, an arbitrator may issue an award that does nothing more than announce a result – declare the winner and the loser. See Cat Chater LLC v. Schurtenberger,646 F.3d…
You might recall SCOTUS’s 2017 smack down of a Kentucky common law rule regulating the formation of an arbitration agreement in Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1424 (2017).  Liz wrote about the case here and here.  Basically, in the case, the Kentucky Supreme Court said some unkind things about arbitration, reminiscent of the old-time hostility that the FAA was designed to overcome. More particularly, three wrongful death…
As regular readers of the blog may recall, Liz wrote a brief note about a decision by the Supreme Court of Missouri holding that arbitration is not available when companies select a defunct institution to administer their arbitrations with consumers.  See A-1 Premium Acceptance, Inc. v. Hunter, 2018 WL 4998256 (Mo. Oct. 16, 2018).  In the case, the commercial party — A-1 — had designated, in a 2006 arbitration agreement contained loan documents, the National…
At least in theory, mutual assent remains a cornerstone of contract law and thus of arbitration.  The tricky part has become understanding what counts as mutual assent in a world where overwhelming empirical evidence, not to mention our own lived experience, demonstrates that no one reads standardized terms and conditions, including arbitration provisions buried in fine print, or more commonly these days, a maze of hyperlinks. Basically, to get around the unilateral character of adhesive…