Arbitration Enforcement, Proceedings

Two circuits earlier this year held arbitration inapplicable to non-signatories, and another two circuits (despite Italian Colors) ruled that arbitration cannot limit federal statutory rights through high fees or the use of tribal law. More detail can be found in this article

As detailed in this article, a defendant may waive its right to compel arbitration by refusing to pay arbitration fees, by participating in class litigation pre-certification, or by participating too long in an individual or even a related court action.

The Seventh Circuit on May 26 ruled that the National Labor Relations Act prohibits enforcement of class waivers against employees. This article explains the case and its implications for challenges to arbitration of both employment and consumer disputes.

The Supreme Court has just made it harder, but not impossible, for consumers to proceed in arbitration on a class basis. An ambiguous provision is insufficient to authorize class arbitration, but this article explains how language commonly found in arbitration agreements might still be found to authorize class arbitration.

The Consumer Financial Protection Bureau on May 5 released its proposed rule that would largely eliminate mandatory arbitration of financial services class actions. A summary of the proposal and a listing of other limits on mandatory arbitration is found here.

A Mississippi federal court on November 7 preliminarily enjoined a new federal rule that would have banned arbitration clauses in nursing home and other long-term care contracts, as described in this updated article.

On October 24 the Senate joined the House in repealing the CFPB Arbitration Rule that would have eliminated forced arbitration clauses containing class action bans in consumer financial contracts. This article lists twelve ways to still defeat a forced arbitration clause, even for class actions.

A May 2019 Eleventh Circuit decision provides an important illustration of how a consumer can end up in court (even in a class action) when the business does not comply with the arbitration provider’s rules. This article sets out practice tips on how a company’s failure to pay arbitration fees or meet other requirements can make the company’s arbitration agreement unenforceable.

Breazeale v. Victim Servs., Inc., 2017 WL 6601779 (9th Cir. Dec. 27, 2017) is an important decision with potentially broad consequences for litigation involving the commercialization of the criminal justice system. The court held that the Federal Arbitration Act, 9 U.S.C. § 1, et seq., does not apply to agreements between individuals and private contractors acting on behalf of the government, at...