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Waving Goodbye to Arbitration

By Henry Allen Blair on August 9, 2019

Woman and sunset — Woman on bench and sunset - vacation background

I can’t believe we’re more than a week into August! I don’t know about you, but I feel like I’m going to have to say goodbye to summer too soon. I love fall, so maybe that’s not so bad? Anyway, speaking of farewells, this week we get a back-to-the-basics refresher from the Eleventh Circuit on waving bye-bye to the right to arbitrate. Although the particulars involved a consumer arbitration agreement, the key reasoning applies more…

Arbitration Nation

A Bit More on Who Decides Class Arbitrability, From the Alabama Supreme Court

By Henry Allen Blair on August 4, 2019

Happy August! What’s a better way to start the month than thinking about class arbitrability! Again. Ugh. Trust me, I would much rather consider so many other exciting arbitration issues, but this one seems to be occupying a lot of court attention, so I’d be remiss not to report on it. Since my last update, I ran across a recent state court’s perspective on the question of who decides class arbitrability. In Alabama Psychiatric Servs. …

Arbitration Nation

The Fifth Circuit Weighs in About Who Decides Class Arbitrability

By Henry Allen Blair on July 28, 2019

Earthquake cracked ground floor — Earthquake cracked whie floor showing a huge hole in the ground caused by a dangerous earth shattering seismic disaster that was very high on the richter scale

The Fifth Circuit just deepened (and confused) a Circuit split over the question of who decides whether an arbitration agreement permits class proceedings. See 20/20 Communications, Incorporated v. Crawford, 2019 WL 3281412 (5th Cir. July 22, 2019). Liz has written about the split here, here, and here. (You might also recall that SCOTUS flagged this issue, though it punted on it, in Lamps Plus, Inc. v. Varela, 139 S. Ct.…

Arbitration Nation

The Eighth Circuit Says a Delegation Clause Isn’t Valid (and Calls Wrap Contract Formation Into Doubt at the Same Time)

By Henry Allen Blair on July 16, 2019

So, remember when we talked about Just How Small the Bullseye Is for Challenging a Delegation Clause a few weeks ago? Apparently, the target is small but not necessarily as unhittable as I suggested. You might recall that in that earlier post we were looking at a Missouri Supreme Court decision, State Ex Rel. Newberry v. Jackson, 2019 WL 2181859 (Mo. May 21, 2019). There, Missouri’s highest court said, “Rent-A-Center teaches that a delegation clause…

Arbitration Nation

A Forum Selection Provision Doesn’t Necessarily Negate an Arbitration Provision

By Henry Allen Blair on July 10, 2019

Back to Basics - Chalkboard — The words Back to Basics written on a chalkboard

The Sixth Circuit just reminded us all that a forum selection provision identifying courts where any lawsuit may be filed doesn’t necessarily negate an arbitration provision. In White v. ACell, Inc., 2019 WL 2929933 (6th Cir. July 8, 2019), an employee had entered into two separate agreements related to his employment. One called for arbitration of “any dispute between us . . . , including but not limited to claims of employment discrimination,” but…

Arbitration Nation

Class Action Waivers Are Okay, But Waivers of Public Injunctive Relief Aren’t

By Henry Allen Blair on July 1, 2019

outline map of us state of california on blackboard

Two posts on arbitration law in one day! What?!? Is it your birthday? No, no. (Well, maybe. And if so, happy birthday!) It’s just that I finished reading what I think are the three most significant and fascinating arbitration cases to be decided so far this year. I’m so excited that I had to write a second post today! All three cases address whether a rule articulated by the California Supreme Court in McGill v. Citibank…

Arbitration Nation

Continuing Efforts to Clarify the Effectiveness of Wrap Arbitration Agreements

By Henry Allen Blair on July 1, 2019

Wrap agreements continue to present challenges. I don’t often write about district court decisions, and particularly not unpublished ones, but a recent case out of Illinois warrants an exception. (See earlier considerations of wrap arbitration agreements on this blog hereand here.) Just as a quick refresher about wrap agreements, courts have refocused the notion of mutual assent on whether a reasonable person in the position of the recipient of boilerplate should have seen…

Arbitration Nation

First Things First: Who Decides Issues of Subject Matter Arbitrability?

By Henry Allen Blair on June 23, 2019

Happy summer! It’s been far too long since my last update, but rest assured I have been thinking a lot about arbitration. In fact, I’m currently teaching a summer course at Queen Mary University of London’s International School of Arbitration, which is a ton of fun. My teaching, in fact, partly inspired this post. Teaching arbitration in an international context reminds me of the fact that the United State’s permissive “everything can be arbitrated” approach…

Arbitration Nation

Missouri Reminds Us Just How Small the Bullseye Is for Challenging a Delegation Clause

By Henry Allen Blair on June 1, 2019

Missed — Red target with missed arrows on the white background.

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…

Arbitration Nation

California Sun! An International Dispute Resolution Conference at Pepperdine

By Henry Allen Blair on May 7, 2019

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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,…

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Waving Goodbye to Arbitration

A Bit More on Who Decides Class Arbitrability, From the Alabama Supreme Court

The Fifth Circuit Weighs in About Who Decides Class Arbitrability

The Eighth Circuit Says a Delegation Clause Isn’t Valid (and Calls Wrap Contract Formation Into Doubt at the Same Time)

A Forum Selection Provision Doesn’t Necessarily Negate an Arbitration Provision

Class Action Waivers Are Okay, But Waivers of Public Injunctive Relief Aren’t

Continuing Efforts to Clarify the Effectiveness of Wrap Arbitration Agreements

First Things First: Who Decides Issues of Subject Matter Arbitrability?

Missouri Reminds Us Just How Small the Bullseye Is for Challenging a Delegation Clause

California Sun! An International Dispute Resolution Conference at Pepperdine

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