The U.S. Supreme Court today held that waiver of the right to arbitrate does not require a showing that the other party was prejudiced. The unanimous opinion by Justice Kagan in Morgan v. Sundance reversed the Eighth...more
Recently, the Ninth Circuit Court of Appeals reexamined when use of a website can bind a consumer to hyperlinked “terms and conditions” containing an arbitration provision that the consumer never saw or read. Affirming the...more
Ruling on an important Federal Arbitration Act (FAA) procedural issue that has divided the circuit courts, the U.S. Supreme Court has decided that the “look-through” approach often used in determining whether federal...more
A recent blog by Professor Jeff Sovern, occasioned by the recent Senate hearing on consumer arbitration clauses, recycles two of his favorite talking points: (1) consumers don’t understand arbitration clauses, and (2)...more
The U.S. Senate passed a bipartisan bill aimed at preventing employers from requiring workers to arbitrate sexual harassment and assault claims. The bill will now go to President Biden for his expected signature. Known as...more
The U.S. Court of Appeals for the Third Circuit recently ruled that the application of Pennsylvania usury laws to auto title loans made to Pennsylvania residents who travel outside of Pennsylvania to obtain such loans does...more
The U.S. House of Representatives has fired another salvo against class and collective action waivers in employment agreements. The recently passed Build Back Better Act (BBB Act) would amend the National Labor Relations Act...more
In a recent “open letter” to newly confirmed CFPB Director Rohit Chopra, Professor Jeff Sovern asks the agency not to forget about “arbitration” as it implements its regulatory agenda. He argues that “[p]re-dispute...more
In a recent guest post, Professor Mark Budnitz voiced support for Professor Jeff Sovern’s recent proposal that the CFPB issue a rule barring the use of pre-dispute arbitration agreements unless consumers opt in to them. He...more
Professor Jeff Sovern responded to our blog criticizing his proposal for a new CFPB arbitration rule by asserting that his proposed rule is not substantially the same as the prior CFPB rule that Congress vetoed and,...more
Professor Jeff Sovern recently proposed that the CFPB issue a supposedly “new” arbitration rule “that prevents companies from blocking consumers from suing in court unless consumers specifically opted in to the arbitration...more
For the second time in two years, the U.S. Supreme Court is being asked to decide whether the Federal Arbitration Act (FAA) preempts California law (the “McGill Rule”) which invalidates arbitration agreements that waive the...more
Consumer advocates often contend that Congress should prohibit arbitration agreements with class action waivers because servicemembers and other consumers need class actions to effectuate their statutory rights. However, a...more
A litigation phenomenon that has recently surged is the simultaneous filing of hundreds or even thousands of individual arbitration demands against the same company by the same law firm, requiring the company to pay the...more
Proposed legislation now working its way through the New Jersey Senate would eliminate the eligibility of postsecondary students and other individuals for State student assistance, training and employment services, including...more
On June 15, 2020, the U.S. Supreme Court granted certiorari in Henry Schein, Inc. v. Archer and White Sales, Inc. to decide a question that has divided the federal circuit courts and state supreme courts: “whether a provision...more
6/18/2020
/ Appeals ,
Arbitration ,
Arbitration Agreements ,
Arbitrators ,
Certiorari ,
Contract Terms ,
Exceptions ,
Federal Arbitration Act ,
Henry Schein Inc v Archer and White Sales Inc ,
Judicial Review ,
Motion to Compel ,
Question of Arbitrability ,
Remand ,
SCOTUS ,
Vacated ,
Wholly Groundless Doctrine
Briefing is now complete on the petitions for certiorari in the Blair v. Rent-A-Center appeals that could produce the next blockbuster U.S. Supreme Court arbitration decision. At issue is whether the Federal Arbitration Act...more
On March 26, the American Bankers Association and the Consumer Bankers Association, represented by Ballard Spahr, filed an amicus brief in support of petitions for certiorari asking the Supreme Court to review the Ninth...more
After denying the defendants’ petitions for panel and en banc rehearing in the Blair v. Rent-a-Center appeals, the Ninth Circuit has granted their motions to stay the issuance of the Court’s mandates for 90 days pending the...more
1/31/2020
/ Arbitration Agreements ,
AT&T Mobility v Concepcion ,
Class Action ,
Class Action Arbitration Waivers ,
Consumer Contracts ,
Contract Terms ,
Employment Contract ,
En Banc Review ,
Epic Systems Corp v Lewis ,
Federal Aviation Administration (FAA) ,
Injunctive Relief ,
Judicial Review ,
Lamps Plus Inc v Varela ,
Petition for Writ of Certiorari ,
Preemption ,
SCOTUS ,
Stays ,
The McGill Rule
On January 17, 2020, the Ninth Circuit denied the defendants’ petitions for panel and en banc rehearing in the Blair v. Rent a Center appeals, setting the stage for possible U.S. Supreme Court review of the California Supreme...more
1/21/2020
/ Appeals ,
Arbitration ,
Arbitration Agreements ,
AT&T Mobility v Concepcion ,
Class Action ,
Class Action Arbitration Waivers ,
En Banc Review ,
Federal Arbitration Act ,
Injunctive Relief ,
Petition For Rehearing ,
Preemption ,
Public Policy ,
The McGill Rule
A group of small businesses and their individual owners have filed a putative class action lawsuit in a New York federal district court against online lender Kabbage, Inc. that alleges Kabbage engaged in a “rent-a-charter”...more
10/10/2019
/ Arbitration ,
Class Action Arbitration Waivers ,
Commercial Loans ,
Consumer Financial Products ,
Contract Terms ,
Federal Arbitration Act ,
Financial Services Industry ,
Financing ,
Loan Agreements ,
Loans ,
Mandatory Arbitration Clauses ,
Motion to Compel ,
Putative Class Actions ,
RICO ,
Small Business ,
Statutory Violations ,
UDAP ,
Unconscionable Contracts ,
Usury
The Federal Trade Commission (FTC) recently released its preliminary report on two studies it conducted to help understand the effectiveness of class action settlement notices and to “develop information to help improve...more
The California Chamber of Commerce is encouraging its members to send letters to California Governor Gavin Newsom urging him to veto California SB 707, which was passed by the state’s Assembly and Senate and is currently...more
10/2/2019
/ Arbitration ,
Arbitration Agreements ,
Arbitration Fees ,
Chamber of Commerce ,
Data Breach ,
Employment Contract ,
Governor Newsom ,
Governor Vetoes ,
Legislative Agendas ,
Pending Legislation ,
State and Local Government
As we recently advised you , on September 9, 2019, the Ninth Circuit ordered the plaintiffs in the Blair v. Rent-A-Center appeals to respond to the defendants’ petitions for rehearing, which ask the court en banc to overturn...more
We recently posted a discussion concerning the petitions for rehearing filed in the Blair v. Rent-A-Center appeals pending in the Ninth Circuit which raise the issue of whether the Federal Arbitration Act preempts...more