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U.S. Supreme Court rejects prejudice requirement for waiver of arbitration

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

Ninth Circuit revisits standards for enforcing online arbitration provisions

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

U.S. Supreme Court restricts ability of federal courts to confirm or vacate arbitration awards

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

It’s Déjà Vu All Over Again from Professor Sovern

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

Senate passes bill curbing arbitration of workplace sexual harassment claims: could more FAA exceptions follow?

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

Third Circuit holds application of PA usury law to auto loans made to PA residents at out-of-state locations does not violate...

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

A trio of House bills take aim at Epic Systems

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

CFPB Should Disregard Professor Sovern’s Advice to Try to Regulate Arbitration (Again)

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

Neither Professor Budnitz’s Nor Professor Sovern’s Anti-Arbitration Arguments Should Prompt the CFPB to Reconsider Delving into...

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 Sovern’s Opt-In Arbitration Proposal: A Wolf In Sheep’s Clothing

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 Sovern’s Opt-In Arbitration Proposal Is Neither New Nor Supportable

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

Supreme Court Is Asked (Again) to Rule on Whether the FAA Preempts California Public Injunctive Relief Law, But This Time There is...

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

GAO report shows servicemembers can effectuate USERRA and SCRA rights in arbitration, and arbitration clauses do not prevent...

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

New AAA Consumer Fee Schedule Addresses Mass Arbitration Costs

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 NJ anti-arbitration legislation for school enrollment contracts: an act of futility

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

Supreme Court Agrees to Decide Arbitration Issue (But Not the Expected One)

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

FAA Preemption Petitions Now Ripe for SCOTUS Conference

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

Petitioners in FAA Preemption Cases Receive Support of Industry Groups in Brief filed by Ballard Spahr with Supreme Court

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

Ninth Circuit denies Blair rehearing petitions, setting stage for possible SCOTUS review

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

Small business borrowers bring lawsuit alleging lender engaged in “rent-a-charter” scheme to make usurious loans

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

FTC Study: Class Action Settlement Notices Have Room to Improve

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

CA Chamber seeks veto of CA bill making failure to pay arbitration fees punishable by sanctions

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

Plaintiffs Respond to Blair Rehearing Petitions

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

Ninth Circuit Orders Plaintiffs to File Responses to Blair Rehearing Petitions

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

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