The Supreme Court has decided Morgan v. Sundance Inc., No. 21-328, ruling unanimously that there is no prejudice requirement under the Federal Arbitration Act (“FAA”) for a court to find a waiver of arbitration rights. We reported in December 2021 that the Supreme Court had granted Certiorari in four cases involving arbitration, among them Sundance. Specifically, the Court on November 15 agreed to review Morgan v. Sundance…

FINRA Dispute Resolution Services (“DRS”) posted case statistics through March, with the overall case filing trends – with one exception – about the same as before. We summarized these stats in SAA 2022-16 (Apr. 28), and promised an analysis in this week’s Alert. While we still caution that results after three months are a still somewhat small sample, we…

The SEC’s Division of Examinations (“DOE”) has issued its exam priorities for 2022. Once again, FINRA’s dispute resolution program isn’t included. The 32-page DOE Report was announced in a March 30 Press Release. Division of Examinations Acting Director Richard R. Best articulates these objectives: “In this time of heightened market volatility, our priorities are tailored to focus on emerging issues, such…

The lack of an affirmative action by the consumer to accept the browsewrap agreement’s Terms of Service “TOS”) doomed the PDAA therein. Whether a predispute arbitration agreement (“PDAA”) in Terms of Service (“TOS”) in an online “browsewrap” agreement is enforceable under the Federal Arbitration Act depends largely on whether the TOS containing the PDAA were…

The recent pace of legislative activity prompted us to look up how many bills have been introduced in the 117th Congress that in some way, shape, or form, refer to arbitration. A search we conducted using the non-partisan www.govtrack.us Website shows that 171 bills have been introduced so far that contain the term “arbitration” or “arbitrate” – 106 in the House and…

Just as we went to press came word that, based on statutory construction, the Supreme Court has decided Badgerow v. Walters, No. 20-1143, ruling 8-1 that the “look through” doctrine does not apply to actions to confirm or vacate an arbitration award under sections 9 and 10 of the Federal Arbitration Act (“FAA”), even though it does for motions to…

Just a reminder that SCOTUS will be hearing oral arguments on two cases involving arbitration. We reported in December that the Supreme Court had granted Certiorari in four cases involving arbitration. Then SAA 2022-04 (Feb. 3) advised that the Court had set the cases for oral argument during the last two weeks of March. The oral argument calendar released by SCOTUS…

President Biden on March 3 signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. It became effective immediately. This article explores the features of the new law, potential problems, and how it might impact financial services arbitration. In sum: 1) employees/class reps can opt out of PDAAs and class action waivers in cases…

President Biden on February 23 nominated Ketanji Brown Jackson to replace the retiring Supreme Court Justice Breyer, a White House Press Release announced. Judge Brown Jackson was appointed by President Obama in 2013 to the U.S. District Court for the District of Columbia, and by President Biden last year to the Court of Appeals for the District of Columbia Circuit (to fill the seat vacated by Merrick B….

Just as we were finalizing the last Alert, we learned that a Georgia Trial Court had vacated a FINRA Award based on multiple Federal Arbitration Act (“FAA”) grounds. Here is the promised expanded analysis. We reported briefly on this one in SAA 2022-04 (Feb. 3), focusing mostly on the assertions that the potential arbitrator list preparation…

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