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The AAA Has Scheduled a Preliminary Hearing. What Should My Business Expect?

September 24th, 2026 American Arbitration Association, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Awards, Practice and Procedure, Preliminary Hearings, Small Business B-2-B Arbitration No Comments »

Introduction: The Preliminary Hearing Is Not the Trial—but it Can Shape the Arbitration

Preliminary HearingYour business has answered the arbitration demand, participated in selecting the arbitrator, and now the American Arbitration Association (“AAA”) says the arbitrator wants to hold a preliminary hearing. What is that hearing, what will likely happen, and how should the business prepare?

The short answer is that the preliminary hearing ordinarily is not a trial on the merits. It is a case-management conference at which the arbitrator and the parties establish how the arbitration will proceed. But calling it a scheduling conference understates its importance. Decisions made there can determine how much discovery will occur, whether dispositive motions may be made, when the evidentiary hearing will take place, how and when witnesses and exhibits will be presented, and, ultimately, how much time and money the arbitration will consume.

This article picks up where our recent small-business articles on responding to an AAA arbitration demand and selecting an arbitrator from an AAA list left off. It assumes an ordinary business-to-business arbitration governed by the regular AAA Commercial Arbitration Rules and Mediation Procedures (the “AAA Commercial Rules”)—incorporated by reference by the terms of the contract—rather than the Expedited Procedures or the Procedures for Large, Complex Commercial Disputes. The parties’ contract may also modify the Rules, so counsel should always start with the arbitration agreement, reading it together with the contract’s incorporation of the Rules.

What Is an AAA Preliminary Hearing?

AAA Commercial Rule R-22 says that, depending on the size and complexity of the arbitration, the arbitrator should schedule a preliminary hearing “as soon as practicable” after appointment. AAA Commercial Rules R-22(a). The parties and their representatives should be invited and the conference may be in person, by videoconference or phone. AAA Commercial Rule R-22(a).

The purpose is practical. Rule R-22(b) directs the arbitrator and the parties to “be prepared  to discuss and establish a procedure for the conduct of the arbitration that is appropriate to achieve a fair, efficient, and economical resolution of the dispute.” AAA Commercial Rules R-22(b). Preliminary Hearing Procedures P-1 and P-2 of the AAA Commercial Rules address the issues to be considered at the preliminary hearing. See AAA Commercial Rule R-22(b); AAA Commercial Rules, Preliminary Hearing Procedures P-1–P-2.

Preliminary Hearing Procedure P-1(a) makes the same point about fairness, efficiency, and economics. P-1(b) urges that “[c]are must be taken to avoid importing procedures from court systems, as such procedures may not be appropriate to the conduct of arbitrations as an alternative form of dispute resolution that is designed to be simpler, less expensive and more expeditious.” Preliminary Hearing Procedures P-1(a) & (b).

Arbitration flexibility can be a major advantage, but only if the business and its counsel use it intelligently and not treat it as what some have referred to as “arbigation.” In the author’s experience, attorneys and businesses that have been involved in specialized, industry arbitration (such as reinsurance, maritime, FINRA, and others) tend to understand this better than persons who have more experience handling court litigation. Be that as it may, a well-conducted preliminary hearing can and should promote arbitration flexibility and informality.

What Will the Arbitrator Want to Discuss at the Preliminary Hearing?

Continue Reading »

October 16 myLawCLE Webinar: Start in Arbitration, Finish in Court: The Sexual Harassment Plaintiff’s Election to Litigate

September 23rd, 2026 Application to Stay Litigation, Arbitrability, Arbitration Agreement Invalid, Arbitration Agreement Unenforceable, Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Authority of Arbitrators, Challenging Arbitration Agreements, Charles Bennett, Claims Spot, Clear and Unmistakable Rule, Delegation Agreements, Delegation Provision, EFAA - FAA Chapter 4, Employment Arbitration, Enforcing Arbitration Agreements, FAA Chapter 4, FAA Section 2, Federal Arbitration Act Section 2, Forfeiture, Gateway Disputes, Gateway Questions, Philip J. Loree Jr., Predispute Arbitration Agreements, Richard D. Faulkner, Section 2, Separability, Severability, Sexual Harassment and Sexual Assault Disputes, United States Court of Appeals for the Ninth Circuit, United States Court of Appeals for the Second Circuit, United States Court of Appeals for the Sixth Circuit, Webinars No Comments »

Philip J. Loree Jr., Richard D. Faulkner, and Charles (“Chuck”) Bennett will Discuss the EFAA’s Application and Effect in an October 16, 2026, myLawCLE Webinar

What may result from the EFAA's application -- A Lawsuit, not an arbitration. . . . On October 16, 2026, I will be joining my good friends and colleagues Richard D. Faulkner of Faulkner ADR Law and Charles (“Chuck”) Bennett of Bennett Legal for a two-hour live myLawCLE webinar, which discusses the EFAA’s application and effect:  Start in Arbitration, Finish in Court: The Sexual Harassment Plaintiff’s Election to Litigate. The program begins at 2:30 p.m. Eastern and focuses on one of the most important practical consequences of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”): when, and how, a claimant who would otherwise be required to arbitrate may elect instead to litigate in court. That election to litigate may include not only sexual harassment and sexual assault disputes, but all otherwise arbitrable claims that are part of the same case.

The EFAA, codified as Chapter 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 401-402, gives persons alleging covered sexual-harassment or sexual-assault disputes a post-dispute choice that did not exist under the ordinary FAA regime. But identifying that choice is only the beginning. The statute has generated substantial litigation over when a covered dispute arises or accrues, what qualifies as a covered dispute, who decides those questions, how broadly the election extends in a mixed-claim case, and what happens when arbitration has already begun.

We have previously discussed the EFAA’s structure in a practical Arbitration Law Forum overview and examined the Sixth Circuit’s entire-case ruling in Bruce v. Adams & Reese. The October 16 program builds on those discussions and approaches the subject from both claimant-side and employer-side perspectives.

Part I: When a Sexual Harassment Plaintiff Can Still Elect Court Over Arbitration

The first segment, When a Sexual Harassment Plaintiff Can Still Elect Court Over Arbitration, addresses the threshold coverage questions.

We will begin with the statute itself: what constitutes a “predispute arbitration agreement” or “predispute joint-action waiver”; what counts as a “sexual harassment dispute” or “sexual assault dispute”; and how Section 402(b) assigns questions about the EFAA’s  applicability to courts even when an arbitration agreement contains a delegation clause, and even if such an arbitral determination might be authorized by the doctrine of separability. We will also discuss the statute’s March 3, 2022 effective-date limitation and the developing case law concerning when a dispute “arises” or a claim “accrues.”

A central issue is the EFAA’s use of the word “case.” In Bruce v. Adams & Reese, LLP, 168 F.4th 367 (6th Cir. 2026), the Sixth Circuit held that a plausibly pleaded sexual-harassment dispute could render a predispute arbitration agreement unenforceable as to the entire case, including claims that otherwise would have been arbitrable. The Ninth Circuit subsequently reached the same basic conclusion in a different procedural context in Ding Ding v. Structure Therapeutics, Inc., No. 25-1532, slip op. (9th Cir. Aug. 19, 2026).

That entire-case rule substantially raises the stakes of the threshold pleading fight. If the claimant adequately alleges a covered dispute, the forum for all properly joined claims may turn on that one issue. If the alleged covered dispute fails at the pleading stage, however, the remaining claims may still be subject to arbitration. We will examine what the cases say about that distinction and what it means in practice.

Part II: Executing the Arbitration Exit in a Sexual Harassment Case

The second segment, Executing the Arbitration Exit in a Sexual Harassment Case, moves from coverage to the EFAA’s application. Section 402(a) speaks in terms of an “election,” but it does not prescribe a form of notice, a special deadline, a required pleading mechanism, or a detailed process for leaving an arbitration that is already underway. Those omissions make execution of the EFAA’s election a practical lawyering problem.

For claimants, we will discuss how to make the election explicit; how to plead the covered dispute with the anticipated motion to compel in mind; how to establish the relationship between the covered dispute and the rest of the case; and how to document timing and knowledge when facts supporting an EFAA claim emerge only after arbitration has begun.

Ding Ding is particularly important on that last point. The Ninth Circuit held that a claimant who initially arbitrated claims that did not allege sexual harassment was not necessarily locked into arbitration after later discovering facts supporting a covered sex-based harassment claim within the EFAA’s ambit. But the court also recognized that ordinary waiver principles remain relevant. The practical question therefore becomes what the claimant knew, when the claimant knew it, and whether the claimant intentionally chose to arbitrate a known EFAA-covered dispute.

We will examine the same problems from the employer’s side. An employer confronting an EFAA election must decide quickly whether a dispute alleged to be within the EFAA’s coverage can be challenged at the pleading stage, whether a waiver argument is available, how to preserve arbitration rights while litigating the threshold issue of the EFAA’s applicability, and whether severance or relatedness arguments have any realistic force under the emerging entire-case rule.

The program will also use Puris v. TikTok as a vehicle for discussing harder boundary questions, including third-party harassment, employer responsibility, retaliation, and sex-based hostile-environment allegations that may not involve overtly sexual conduct. Puris is pending before the Second Circuit, and we’ve got our eyes open for a decision that might be handed down any day now.

Why the EFAA’s Provisions Are of Interest to both the Employment and Arbitration Bars

The EFAA’s provisions are short and few but its procedural consequences are significant. It can override otherwise enforceable predispute arbitration agreements, displace delegation provisions and the doctrine of separability and determine the forum for an entire employment case. Recent appellate decisions have moved the law forward quickly, but they also make clear that outcomes may depend on pleading, timing, waiver, motion sequencing, and the substantive harassment law incorporated into the EFAA’s definitions.

Our goal on October 16 is to provide a practical framework for analyzing those issues, which can be procedural traps for the unwary. We hope the program will be useful to arbitration practitioners, employment lawyers, in-house counsel, and others who may have to determine whether a dispute that appears headed for arbitration can – or must – finish in court.

The program is live on October 16, 2026, at 2:30 p.m. Eastern and offers two hours of CLE credit. Additional information and registration are available on the myLawCLE program page.

Chuck, Rick, and I would like to thank Mishelle Villatoro, myLawCLE’s CLE Program Development Specialist for organizing and coordinating the program, and John Holloway, the CEO of myLawCLE, for inviting the three of us to speak.

Contacting the Author

If you have any questions about this article, arbitration, arbitration law, or arbitration-related litigation, then you may contact the author, Philip J. Loree Jr. at (516) 941-6094 or PJL1@LoreeLawFirm.com.

Philip J. Loree Jr. is principal of the Loree Law Firm, a New York attorney who focuses his practice on arbitration and associated litigation. A former BigLaw partner, he has more than 35 years of experience representing a wide variety of domestic and international corporate, other entity, and individual clients in trial-court and appellate matters arising under the Federal Arbitration Act – including matters arising under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. He also has significant experience arbitrating and litigating insurance- and reinsurance-related and other commercial disputes, and in advising clients and co-counsel in arbitration-law-related matters.

ATTORNEY ADVERTISING NOTICE: Prior results do not guarantee a similar outcome.

Photo Acknowledgment

The photo featured in this post was licensed from Yay Images and is subject to copyright protection under applicable law.

The AAA Sent Me a List of Arbitrators. How Should My Business Choose One?

September 19th, 2026 American Arbitration Association, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitrator Duty to Disclose, Arbitrator Lists and Ranking, Arbitrator Selection, Arbitrator Selection and Qualification Provisions, Evident Partiality, Impartiality, Independence No Comments »

Arbitrator Selection | AAA Commercial RulesThis is a small business guide to the default method of arbitrator selection under the American Arbitration Association (“AAA”) Commercial Arbitration Rules and Mediation Procedures (the “AAA Commercial Rules”, available here). It picks up where our most recent article—a small business guide to the first few days of an AAA  arbitration—left off.

Like our most recent article, it assumes there is a business-to-business dispute governed by AAA Commercial Rules, the parties’ agreement does not prescribe an arbitrator selection regime, and that the AAA has sent the parties a list of potential neutral arbitrators under AAA Commercial Rule R-13.

Arbitrator selection is one of arbitrator’s most important features. More than 20 years ago, U.S. Circuit Judge Richard A. Posner (ret.) explained that the “cornerstone of the arbitral process” was the “[s]election of the decision maker by or with the consent of the parties. . . .” Lefkovitz v. Wagner, 395 F.3d 773, 780 (2005); see also Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 668, 670 (2010) (one of the FAA’s “rules of fundamental importance” is parties “may choose who will resolve specific disputes”) (emphasis added; citations omitted).

An AAA-proffered list of arbitrator candidates is not routine paperwork. The business should treat arbitrator selection as a major strategic decision, begin promptly the process, and work closely with experienced arbitration counsel in an effort to ensure informed, deliberate choices are made throughout it.

The arbitrator will manage the proceeding, resolve discovery and procedural disputes, hear the evidence, apply the governing law and contract, and ultimately decide who wins and what relief, if any, should be awarded to whom. In most cases, judicial review of the resulting award will be extremely limited.

Given the stakes, the parties are likely to disagree on who an ideal candidate should be.

So what should a business do when it receives an AAA list of arbitrator candidates? Continue Reading »

I Just Received an Arbitration Demand Under the AAA Commercial Rules. What Should I Do First?

September 14th, 2026 American Arbitration Association, Arbitrability, Arbitral Seat, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration Fees, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitration Risks, Arbitration Situs, Arbitrator Selection and Qualification Provisions, Authority of Arbitrators, CPLR Article 75, Insurance Coverage, New York Arbitration Law (CPLR Article 75), Uncategorized No Comments »

Introduction: Treat the AAA Demand as a Legal Proceeding, Not Routine Business Mail

AAA Commercial Arbitration Demand | First Steps After Receipt

Received an American Arbitration Association (“AAA”) arbitration demand? Wondering what to do?

The short answer is: contact experienced arbitration counsel immediately. Do not put the arbitration demand in the same pile as ordinary contract correspondence, and do not wait to see what happens next. An AAA commercial arbitration is an adjudicative proceeding that can end in a final, binding, confirmed award fully enforceable in court. Important deadlines can begin running as soon as the AAA sends notice that an arbitration demand  has been filed.

This article assumes a business-to-business contract calling for AAA arbitration under the AAA Commercial Arbitration) Rules and Mediation Procedures (eff. June 1, 2026) (the “AAA Commercial Rules,” available here). It assumes the dispute is not subject to the AAA’s Expeditated Procedures or its Procedures for Large, Complex Commercial Disputes.

A respondent (i.e., a person against whom the arbitration demand is made) ordinarily has 14 calendar days after the AAA sends notice of the filing of the demand to file an answering statement. If no answer is filed, the claim is deemed denied, but the arbitration continues. AAA Commercial Rule R-5(a). Do not treat that deemed denial as permission to ignore the deadline, because other objections may have to be raised at or before the answer.

There is also an important timing wrinkle. Under Rule R-4, the Continue Reading »

No Agreement to Arbitrate in a Case Governed by New York CPLR Article 75?

August 24th, 2026 Application to Confirm, Application to Stay Arbitration, Application to Stay Litigation, Application to Vacate, Arbitrability, Arbitrability - Equitable Estoppel, Arbitrability - Nonsignatories, Arbitrability | Existence of Arbitration Agreement, Arbitration Agreement Invalid, Arbitration Agreement Unenforceable, Arbitration Agreements, Arbitration and Mediation FAQs, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Arbitration Risks, Authority of Arbitrators, Awards, Challenging Arbitration Agreements, Challenging Arbitration Awards, Contract Formation, CPLR Article 75, Existence of Arbitration Agreement, Formation of Arbitration Agreement, New York Appellate Division, New York Arbitration Law (CPLR Article 75), New York Court of Appeals, New York State Courts, Practice and Procedure, Rights and Obligations of Nonsignatories, Small Business B-2-B Arbitration, Stay of Arbitration, Time Limit for Vacating, Modifying, or Correcting Award, Vacate Award | Arbitrability, Vacate Award | Existence of Arbitration Agreement, Vacatur No Comments »

Introduction: Same Hypothetical but New York Article 75 Changes the Timing Analysis

Article 75 - New York state arbitration law

New York’s arbitration statute is New York Civ. Prac. L. & R. (“CPLR”) Article 75. It is essentially New York’s version of the Federal Arbitration Act (“FAA”). The FAA was modeled on the statutory  predecessor of Article 75.  That said, Article 75 and the FAA differ in some material respects.

Our recent Arbitration Law Forum article (the “FAA No Agreement Article”) addressed whether, under the FAA, a business that never agreed to arbitrate may oppose confirmation of an adverse default award even though it did not serve within FAA Section 12’s three-month limitation period a timely motion to vacate, modify, or correct the award.

How would Article 75 resolve the question posed in the FAA No Agreement Article? As we’ll see, the ultimate outcome under both statutes is similar but there are some materially different timing and procedural rules in play. This post discusses how and why that is so.

The Article 75 Hypothetical

Suppose the applicable arbitration law is not the FAA, but New York’s Continue Reading »

No Agreement to Arbitrate? Defending Against an Award Without a Timely FAA Motion to Vacate

August 10th, 2026 Applicability of Federal Arbitration Act, Applicability of the FAA, Application to Confirm, Application to Vacate, Arbitrability, Arbitration Agreements, Arbitration Law, Arbitration Practice and Procedure, Arbitration Risks, Authority of Arbitrators, Awards, Challenging Arbitration Awards, Consent to Confirmation, Contract Formation, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Default Award, Existence of Arbitration Agreement, FAA Chapter 1, FAA Chapter 2, FAA Section 1, FAA Section 10, FAA Section 11, FAA Section 2, FAA Section 3, FAA Section 9, FAA Transportation Worker Exemption, Federal Arbitration Act Section 1, Federal Arbitration Act Section 10, Federal Arbitration Act Section 11, Federal Arbitration Act Section 12, Federal Arbitration Act Section 2, Federal Arbitration Act Section 9, First Principle - Consent not Coercion, Formation of Arbitration Agreement, Grounds for Modifying or Correcting Award, Grounds for Vacatur, Modify or Correct Award, Petition or Application to Confirm Award, Petition to Modify Award, Petition to Vacate Award, Post-Award Federal Arbitration Act Litigation, Practice and Procedure, Section 1, Section 10, Section 11, Section 12, Section 2, Section 9, Small and Medium-Sized Business Arbitration Risk, Small Business B-2-B Arbitration, Supreme Court, Time Limit for Vacating, Modifying, or Correcting Award, United States Supreme Court, Vacate, Vacate Award | Arbitrability, Vacate Award | Exceeding Powers, Vacate Award | Excess of Powers, Vacate Award | Existence of Arbitration Agreement, Vacatur No Comments »

No Agreement: A Businessperson’s Guide to a Narrow but Important Defense to Award Confirmation

no agreementWhat if your adversary obtains a default award against your business but your business never agreed to arbitrate the dispute?

Suppose your business receives an arbitration demand, but it never signed the alleged arbitration agreement, never otherwise agreed to arbitrate, and is not bound to an arbitration agreement under generally applicable state-law contract principles.  Your business promptly objects and refuses to appear in response to the arbitration demand and does not participate in the demanded arbitration.

Undaunted, the claimant proceeds, obtains a default award, waits until the Federal Arbitration Act (the “FAA”)’s three-month period for moving to vacate has expired, and then asks a court to confirm the award. Assume that if there were a binding arbitration agreement, then it would be governed exclusively by the FAA, not state arbitration law.

Must the Court confirm the award simply because your business failed to serve and file a Section 10(a) motion to vacate within FAA Section 12’s three-month limitation period for service of a motion to vacate under Section 10, or modify or correct the award under Section 11? Continue Reading »

Unfavorable Arbitration Award? A Businessperson’s Guide to Vacating, Modifying or Correcting FAA-Governed Awards

July 29th, 2026 Appellate Practice, Application to Vacate, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Authority of Arbitrators, Award Fails to Draw Essence from the Agreement, Award Procured by Fraud and Corruption, Award Vacated, Awards, Businessperson's FAQ Guide to the Federal Arbitration Act, Challenging Arbitration Awards, Contract Interpretation, Corruption in the Arbitrators, Corruption or Undue Means, Disinterestedness, Evident Partiality, Exceeding Powers, FAA Chapter 1, FAA Section 10, FAA Section 11, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 10, Federal Arbitration Act Section 11, Federal Subject Matter Jurisdiction, Fraud, Fraud or Undue Means, Grounds for Modifying or Correcting Award, Grounds for Vacatur, Imperfectly Executed Award or Powers, Manifest Disregard of the Agreement, Manifest Disregard of the Law, Modify or Correct Award, Personal Jurisdiction, Petition to Modify Award, Petition to Vacate Award, Post-Award Federal Arbitration Act Litigation, Practice and Procedure, Prejudice, Procedural Arbitrability, Procedural Misconduct, Section 10, Section 11, Small Business B-2-B Arbitration, State Arbitration Statutes, Subject Matter Jurisdiction, Supreme Court, United States Supreme Court, Vacate, Vacate Award | 10(a)(2), Vacate Award | 10(a)(4), Vacate Award | Arbitrability, Vacate Award | Attorney Fees, Vacate Award | Attorney's Fees, Vacate Award | Corruption, Vacate Award | Evident Partiality, Vacate Award | Exceeding Powers, Vacate Award | Excess of Powers, Vacate Award | Existence of Arbitration Agreement, Vacate Award | Fraud, Vacate Award | Manifest Disregard of the Law, Vacate Award | Public Policy, Vacatur No Comments »

Introduction: Can I Vacate, Modify or Correct this Award?

Vacate, Modify or Correct an Arbitration AwardYour business has just received an unfavorable arbitration award. The amount is substantial. The award seems legally wrong, factually indefensible, or procedurally unfair. Questions arise: Will a court vacate, modify or correct it? What would a court review? Where must or may the challenge be brought? How much time is available? And what information will arbitration-law counsel need? Continue Reading »

Latest FAA Section 1 Transportation Worker Exemption Development: SCOTUS Says “No” to Employer’s Bright-Line Rule Conditioning FAA Exemption Eligibility on Requiring Employee to Cross Border to be “Engaged in Commerce”

June 15th, 2026 Appellate Practice, Applicability of Federal Arbitration Act, Applicability of the FAA, Arbitrability, Arbitration Agreement Unenforceable, Arbitration Agreements, Arbitration Law, Arbitration Practice and Procedure, CPR Alternatives, Drafting Arbitration Agreements, Employment Arbitration, Enforcing Arbitration Agreements, FAA Chapter 1, FAA Section 1, FAA Section 2, FAA Section 3, FAA Transportation Worker Exemption, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 1, Federal Arbitration Act Section 2, Motion to Compel Arbitration, Practice and Procedure, Professor Angela Downes, Professor Downes, Richard D. Faulkner, Russ Bleemer, Section 1, Section 2, Section 3 Stay of Litigation, Stay of Litigation, Stay of Litigation Pending Arbitration, Subject Matter Jurisdiction, Supreme Court, Textualism, Videos, Webinars Comments Off on Latest FAA Section 1 Transportation Worker Exemption Development: SCOTUS Says “No” to Employer’s Bright-Line Rule Conditioning FAA Exemption Eligibility on Requiring Employee to Cross Border to be “Engaged in Commerce”

SCOTUS’S Most Recent FAA Section 1 Transportation Worker Exemption Case: Introduction

FAA Section 1 Transportation Worker ExemptionMay was a big month for arbitration in the U.S. Supreme Court. The Court decided the two Federal Arbitration Act (“FAA”) cases on its 2025 Term docket, one on subject matter jurisdiction, the other on the scope of the FAA Section 1 transportation workers exemption.

On May 14, 2026, the Court decided Jules v. Andre Balazs Properties, No. 25-83, slip op. (U.S. May 14, 2026). Jules held that “a federal court with pre-existing jurisdiction over claims that it stayed pending arbitration under §3 can adjudicate a §9 or §10 motion even if that motion does not present, on its face, an independent basis for federal jurisdiction.” Jules, slip op. at 7. Associate Justice Sonia Sotomayor wrote the Court’s well-reasoned, 9-0 opinion in Jules. Professor Angela Downes, Professor Richard D. Faulkner, and the author discussed the then-pending Jules case in a March 27, 2026 YouTube video hosted by the International Institute for Conflict Prevention and Resolution (“CPR”)’s Russ Bleemer and entitled Hot Topics: The Supreme Court’s March on Arbitration. The Arbitration Law Forum will be reporting more about Jules in the not-too-distant future.

But the focus of this post is the second of the two arbitration-law cases decided in May of this 2025 Term, Flowers Foods, Inc. v. Brock, No. 24-935, 608 U.S. ___, slip op. (May 28, 2026), which concerned the scope of the FAA Section 1 transportation workers’ exemption. In Brock the Court unanimously held that a worker who transports goods only within one State may still belong to a class of workers “engaged in . . . interstate commerce” if the transportation work they perform intrastate is part of the route the goods travel interstate. Brock, slip op. at 3. If so, then that worker’s arbitration agreement may under FAA Section 1 be exempt from FAA enforcement. Id.; 9 U.S.C. § 1.

Simple, right? Perhaps, but it underscores an important doctrinal point. Section 1 does not inquire whether a transportation worker actually crosses a state line. It does not ask  whether the worker personally crosses a state line. And it does not ask whether the worker physically touched, loaded, unloaded, or otherwise interacted with a vehicle that crossed a state line. As interpreted by Brock, what Section 1 asks—though not in these precise words—is whether whether the transportation worker plays a “direct, active, and necessary” role in the interstate movement of goods, irrespective of where in the goods’ path of travel the worker played that role. Slip op. at 8. As Associate Justice Neil M. Gorsuch—who authored the opinion for a unanimous Court— aptly explained, applicability of the FAA does not turn on “a game of tag with vehicles” that cross state lines. Slip op. at 3. Continue Reading »

Significant Developments in U.S. State Arbitration Law: the Virginia Arbitration Fairness Act

May 8th, 2026 American Arbitration Association, Anti-Arbitration Statutes, Applicability of Federal Arbitration Act, Application to Appoint Arbitrator, Application to Stay Arbitration, Arbitrability, Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Fees, Arbitration Law, Arbitration Practice and Procedure, Arbitration Provider Rules, Arbitration Providers, Arbitrator Duty to Disclose, Arbitrator Selection and Qualification Provisions, Attorney Fees and Sanctions, Awards, Challenging Arbitration Agreements, Challenging Arbitration Awards, Choice-of-Law Provisions, Class and Collective Proceedings, Commonwealth of Virginia Courts, Conflict of Laws, Conflict-of-Law Rules, Consumer Arbitration, Default in Proceeding with Arbitration, Disinterestedness, Employment Arbitration, Evident Partiality, Exceeding Powers, FAA Chapter 1, FAA Preemption of State Law, FAA Section 2, Federal Arbitration Act Section 10, Federal Arbitration Act Section 2, First Principle - Consent not Coercion, Independence, Judicial Review of Arbitration Awards, Mass Arbitration, Party-Appointed Arbitrators, Petition to Vacate Award, Post-Award Federal Arbitration Act Litigation, Post-Dispute Arbitration Agreements, Practice and Procedure, Predispute Arbitration Agreements, Rights and Obligations of Nonsignatories, Section 2, Section 3 Default, State Arbitration Law, State Arbitration Statutes, State Courts, Statute of Limitations, Stay of Arbitration, Vacate, Vacate Award | 10(a)(2), Vacate Award | 10(a)(4), Vacate Award | Evident Partiality, Vacate Award | Exceeding Powers, Virginia Arbitration Law Comments Off on Significant Developments in U.S. State Arbitration Law: the Virginia Arbitration Fairness Act

Virginia Arbitration Fairness Act: Part I of a Two-Part Post

Virginia Arbitration Fairness Act

Virginia has enacted a targeted arbitration statute that is likely to generate FAA preemption litigation. Chapter 490, Senate Bill 227 (“SB 227”), signed into law on April 8, 2026, amends Virginia’s arbitration statute and adds a new Article 3 to Chapter 21 of Title 8.01, titled the “Arbitration Fairness Act.” 2026 Va. Acts ch. 490; Va. Code §§ 8.01-581.017-.021 (effective July 1, 2026). The Act “shall apply to all arbitration agreements entered into on or after July 1, 2026.” 2026 Va. Acts ch. 490, § 2.

The Act does not purport to prohibit consumer or employment arbitration. Nor does it seek to invalidate categorically pre-dispute arbitration agreements. It instead regulates “high-volume arbitration service providers,” prescribes arbitrator-selection procedures, imposes detailed disclosure obligations, restricts certain provider relationships, regulates invoices and fee payment, creates tolling rules, and authorizes civil remedies and State Corporation Commission penalties. It also adds a new state-law vacatur ground for an award “rendered by an arbitrator selected in violation of” the Act. Va. Code §§ 8.01-581.010(6), 8.01-581.017-.021. That last provision, combined with the disclosure requirements, is a significant consideration in, among other things, evident partiality disputes, and exceeding-powers challenges based on violation of the Act’s provisions concerning  arbitrator selection. Continue Reading »

Carter v. SP Plus Corp. and the Federal Policy in Favor of Arbitration: Seventh Circuit Rejects Arbitration Exceptionalism in an FAA Section 16 Ruling Finding no Appellate Jurisdiction

April 21st, 2026 Appellate Jurisdiction, Appellate Practice, Application to Compel Arbitration, Application to Stay Litigation, Arbitration Agreements, Arbitration as a Matter of Consent, Arbitration Law, Arbitration Practice and Procedure, Challenging Arbitration Agreements, Contract Formation, Employment Arbitration, Enforcing Arbitration Agreements, Equal Footing Principle, Existence of Arbitration Agreement, FAA Chapter 1, FAA Section 2, FAA Section 3, FAA Section 4, Federal Arbitration Act Enforcement Litigation Procedure, Federal Arbitration Act Section 2, Federal Arbitration Act Section 3, Federal Arbitration Act Section 4, Gateway Disputes, Gateway Questions, Moses Cone Principle, Policy, Practice and Procedure, Pre-Award Federal Arbitration Act Litigation, Presumption of Arbitrability, Questions of Arbitrability, Section 2, Section 3 Stay of Litigation, Section 4, Stay of Litigation, Stay of Litigation Pending Arbitration, United States Court of Appeals for the Seventh Circuit Comments Off on Carter v. SP Plus Corp. and the Federal Policy in Favor of Arbitration: Seventh Circuit Rejects Arbitration Exceptionalism in an FAA Section 16 Ruling Finding no Appellate Jurisdiction

Introduction: Carter  and the Federal Policy in Favor of Arbitration

federal policy in favor of arbitration | affidavitUnited States Circuit Judge Judge Frank H. Easterbrook’s opinion in Carter v. SP Plus Corp., No. 25-2127, slip op. at 1-5 (7th Cir. Apr. 15, 2026), is important for two related reasons. First, it carefully distinguishes an immediately appealable denial of a motion to compel arbitration from a non-appealable order refusing to lift a Section 3 stay of litigation pending the district court’s decision on whether an arbitration agreement was formed. Second, and more significantly, it rejects an employer’s attempt to invoke the federal policy favoring arbitration as a reason to relax ordinary procedural and evidentiary rules and resolve doubts in favor of arbitration. The opinion instead applies Morgan v. Sundance, Inc., 596 U.S. 411, 418 (2022), according to its terms: arbitration agreements are to be enforced like other contracts, not a favored class of “super contracts” entitled to special treatment. (For a discussion of Morgan, see here.)

We have discussed how, even before Morgan, courts have recognized that the federal policy in favor of arbitration is of limited scope. (See here.)  Essentially, the principle that doubts should be resolved in favor of arbitration is not at all a generally applicable rule of decision in arbitration law but rather allows, in a limited context, a pro-arbitration resolution of ambiguities concerning the scope of the arbitration agreement itself. See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 301-303 (2010); Lamps Plus v. Varela, 139 S. Ct. 1407, 1418-19 (2019).

Nevertheless, arbitration proponents sometimes still contend that the the federal policy in favor of arbitration requires courts to select a pro-arbitration outcome whenever some doubt exists about an arbitration-law-related question.

Carter reminds us that is not so. The Federal Arbitration Act (the “FAA”) does not authorize arbitration-agreement exceptionalism. If ordinary litigation principles cut against agreement enforcement, then the result should be the same as obtains in any other ordinary contract action. See Carter, slip op. at 4-5; Morgan, 596 U.S. at 418. Outside of its limited role in requiring the summary resolution of contract ambiguities in the scope of the arbitration agreement itself—something that spares arbitration-law litigants (and courts)  from having to conduct lengthy trials to resolve contract ambiguities about scope—the federal policy in favor of arbitration plays no meaningful role, apart from ensuring that arbitration agreements are on an equal footing with other contracts.

Carter is of interest because it concerns FAA Section 16 interlocutory appeals, FAA Section 4 formation disputes, and Morgan‘s continuing role in curbing overbroad invocations of pro-arbitration policy.

Background

Carter, an employee, sued SP Plus Corporation, the employer,  under state and federal minimum-wage statutes. Shortly thereafter,  the district judge stayed the litigation in favor of Continue Reading »

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