Recommended reading:  two posts by attorney Liz Kramer in Arbitration Nation:  “2012 in Arbitration Law:  Is Class Arbitration Naughty or Nice?” and “Preview of SCOTUS’s 2013 Double Feature on Class Action.”

That Was the Year That Was

     In 2012, the big issue was class arbitration, with several states having pro-class-arbitration decisions reversed based on the Supreme Court’s 2011 ruling in Concepcion.  In the federal courts, divergent views emerged on how to apply Stolt-Nielsen, a SCOTUS case holding arbitrators exceeded their authority under the Federal Arbitration Act by permitting class-wide arbitration under circumstances where the parties had stipulated that their agreement was silent as to the availability of class-wide arbitration.  Ms. Kramer observes that this is a rapidly changing area of law about which SCOTUS seems “passionate”, and concludes, “I can’t wait to see what’s on Scalia’s naughty list in 2013!” 

Double Header in 2013

“Two Games Today.”  Puck.  1913.  Library of Congress.

        Based on the preoccupation with class-wide arbitration, and with the split over Stolt-Nielsen, SCOTUS’s work on the arbitration front is cut out for it in two cases it has accepted for 2013: Oxford Health Plans, LLC v. Sutter, and American Express Co. v. Italian Colors Restaurant (Amex III). 

     On November 20, 2012, I posted about American Express Co. under the heading, “Can An Arbitration Class Action Waiver Be Enforced If The Plaintiff Would Not Be Able To Effectively Vindicate Federal Statutory Rights Through Arbitration?”

     “In my view,” writes Liz Kramer, “the real issue here is will SCOTUS acknowledge any expense-based exception to its arbitration precedent?”  In other words, are economic realities ever a sufficient reason to nix arbitration?  The Second Circuit believed the answer was yes, in the case of antitrust litigation.  But Ms. Kramer opines that this decision is likely to be reversed.

     Oxford Health Plans affords SCOTUS an opportunity to resolve the split over the application of Stolt-Nielsen.  Does class-wide arbitration require express authorization, or can it be implied through the traditional methods of contract interpretation by the arbitrator? 

     Note:  I have added Arbitration Nation to my Blogroll.