ABC v. DEF, No. 25-807-cv (2nd Cir.): Arbitration award enforcing confidentiality and non-disparagement provisions in settlement agreement and awarding liquidated damages confirmed—award was not contrary to public policy and did not show manifest disregard of the law.

Since this was a slow arbitration week in the Federal Circuits, I’m adding a state Supreme Court case decided under the Federal Arbitration Act (FAA):

Cole v. Arbor Court Healthcare LLC, No. 25–0285 (Iowa Supreme Court): Appeal from order compelling arbitration in a negligence lawsuit against a nursing care facility—appeal granted—FAA applied because defendant was engaged in interstate commerce—arbitration-specific test for waiver under Iowa law that required a showing of prejudice contravened the United States Supreme Court’s decision in Morgan v. Sundance, Inc. and was pre-empted by the FAA—defendant waived its right to compel arbitration by litigating the case for almost a year.

Bernal v. Kohl’s Corporation and Kohl’s, Inc., 24-2806 (7th Cir.): Defendant failed to register the parties’ arbitration agreement with the arbitration institution as required by its rules and institution closed the case—motion to compel arbitration filed by consumer plaintiffs denied—registration requirement was a “forum-specific procedural gateway” matter for the arbitration institution to decide—in accordance with Wallrich v. Samsung Electronics America, Inc., defendant’s failure to register the arbitration agreement did not constitute a refusal to arbitrate under § 4 of the Federal Arbitration Act and the arbitration was completed in line with the parties’ agreement. [Judge Kolar dissented, rightly in my view, finding that the parties never arbitrated their dispute as contemplated by their agreement].

Frank v. Tesla, Inc., No. 25-4168 (9th Cir.): Arbitration agreement in employment contract was not unconscionable—arbitration award confirmed despite challenge on grounds of misconduct and exceeding powers.

Tejon v. Zeus Networks, LLC, No. 24-11114 (11th Cir.): Arbitration clause in browsewrap agreement located on defendant’s internet-based platform was unenforceable—the page containing the clause was behind a hyperlink that provided insufficient notice to the plaintiff of the arbitration agreement (Judge Branch dissenting).

Crescent City Surgical Operating Company v. Interstate Fire & Casualty Company, No. 25-30044 (5th Cir.): Arbitration clause contained in insurance policy between the plaintiff insured and the defendant foreign and domestic insurers was enforceable only with respect to claims against the foreign insurers—the policy was to be construed as separate contracts between the insured and each insurer and therefore there was no party to the contracts with the domestic insurers that was not an American citizen, as required for the application of the New York Convention—the contracts with the domestic insurers were instead governed by Louisiana law, which does not permit the enforcement of arbitration clauses in insurance contracts, including on equitable estoppel grounds—the litigation of the claims against the domestic insurers stayed pending the arbitration of the claims against the foreign insurers.

Boisvert v. Experian Information Solutions, Inc., No. 25-5387 (9th Cir.): Plaintiff’s declaration that she did not remember agreeing to an arbitration clause in her contract with the defendant did not constitute a genuine dispute of a material fact regarding the existence of the arbitration clause that the court had to resolve before compelling arbitration.

Adserballe & Knudsen A/S v. Facilities Development Corp., No. 25-1604 (4th Cir.): International arbitration award confirmed despite opposition on grounds of public policy and improperly composed arbitral tribunal.

Uddin v. TD Ameritrade, Inc., No. 24-5073 (9th Cir.): FINRA arbitration award confirmed despite opposition on grounds of misconduct, manifest disregard of the law, and public policy.

Shanahan v. IXL Learning, Inc., No. 24-6985 (9th Cir.): School districts were not agents of plaintiff parents for the purpose of binding them to an arbitration clause contained in terms of service between schools and defendant educational technology company—case remanded to determine if plaintiffs had voluntarily ratified the terms of service under California law, as the district court misallocated the burden of proof on voluntariness.

Carter v. SP Plus Corp., No. 25-2127 (7th Cir.): A district court’s order rescinding a premature directive to arbitrate because of emerging conflicting evidence constituted an order conclusively denying the request for arbitration and so was appealable under § 16(a) of the FAA, because the appellant had forfeited any opportunity for an evidentiary hearing regarding the plaintiff’s consent to arbitration—the plaintiff’s sworn affidavit that he did not agree to arbitrate was sufficient to deny arbitration.

French v. US Center for SafeSport, No. 25-1075 (10th Cir.): Arbitration award confirmed despite opposition on the ground that arbitrator improperly considered evidence—no misconduct or lack of fundamental fairness.

United Mexican States v. Lion Mexico Consolidated L.P., No. 24-7185, Consolidated with 24-7186 (D.C. Cir.): NAFTA investment arbitration award confirmed despite opposition on the ground that arbitral tribunal exceeded its powers and acted in manifest disregard of the law, and motion to intervene by a Mexican businessman involved in the events that gave rise to the arbitration denied.

Olson v. FCA US, LLC, No. 24-6527 (9th Cir.): Delegation clause in an arbitration clause contained in a car lease agreement between a car owner and a car dealership, to which the car manufacturer was not a signatory, could not be enforced in a class action against the car manufacturer, because the arbitration clause lacked “clear and unmistakable evidence” that the plaintiff agreed to arbitrate arbitrability with a third party, and equitable estoppel did not apply to enforce the arbitration clause.