Court Declines to Enforce Website's Arbitration Clause

The 9th Circuit yesterday declined to enforce an arbitration agreement contained in Barnes & Noble’s website’s Terms of Use.

The appellate court said “We agree with the district court that Barnes & Noble did not provide reasonable notice of its Terms of Use, and that Nguyen therefore did not unambiguously manifest assent to the arbitration provision contained therein.”

Good commentary by Technology & Marketing Law Blog.

 

Arbitration of Trust Disputes, Telephonic Hearing, and Whether Arbitrator Exceeded Powers

All this in an interesting recent 8th Circuit case, Brown v. Brown-Thill.

Broadly Interpreting Arbitration Agreements, Effectively Vindicating Statutory Rights

The 10th Circuit broadly interpreted an arbitration clause in a non-compete agreement  to require arbitration of claims under the Fair Labor Standards Act because federal law requires all ambiguities about the scope of the agreement to be resolved in favor of arbitration.  Sanchez v. Nitro-Lift Technologies, LLC, __ F.3d__, 2014 WL 3882543 (10th Cir. Aug. 8, 2014).  The court remanded to the district court to determine whether the fees of arbitration precluded the plaintiffs from effectively vindicating their federal statutory rights.  Liz Kramer's summary.

A Solution to the Class Arbitration Problem?

by Emanwel J. Turnbull: "This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation."

New Rules for Consumer Arbitration

The American Arbitration Association announces its new Consumer Arbitration Rules for cases filed on or after September 1, 2014.

Arbitration and Non-Signatories

California Arbitration and Mediation summarizes a recent case in which defendants who did not sign an arbitration agreement could nevertheless enforce that arbitration agreement to stay litigation and compel arbitration of the claims against them.  The California Court of Appeal: “agents of a signatory party, sued in that capacity by another party to an agreement, are entitled to the benefit of the agreement’s arbitration provisions.”

Arbitration and Unconscionability

Savannah Law Professor Susan Landrum has written Much Ado About Nothing?: What the Numbers Tell Us About How State Courts Apply the Unconscionability Doctrine to Arbitration Agreements  Marquette Law Review, Vol. 97, No. 3, 2014.

The abstract:

This Article evaluates how state courts have applied the unconscionability doctrine to contracts, including those involving arbitration agreements. Numerous scholars have been critical of state courts’ application of the unconscionability doctrine to arbitration agreements and have argued that, because state courts are often skeptical or even hostile to arbitration, at least some state courts have used the unconscionability doctrine more often to invalidate arbitration agreements than other types of contract provisions. These assumptions hold true for some individual states or limited time periods, but further research was necessary to determine if the assumptions are true more broadly. For purposes of this study, I analyzed the unconscionability case law, a total of 460 cases, from twenty states — Alaska, Arkansas, Colorado, Illinois, Maine, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Oregon, Rhode Island, South Carolina, and Vermont — during the time period from 1980 to 2012. The results of my research demonstrate that there is significant variation in how courts apply the unconscionability doctrine. Moreover, this Article shows that, for many of these states, the assumptions that scholars have had regarding state courts’ hostility to arbitration agreements, and those courts’ willingness to use the unconscionability doctrine as a means of invalidating arbitration provisions, are not always supported by the case law. Instead of applying generalized assumptions, it is necessary to delve deeper into the case law of each individual state to understand that state’s use of the unconscionability doctrine in the context of arbitration agreements.