11th Cir.: Arb Clickwraps Valid in Fla.

The 100 year-old Federal Arbitration Act (FAA) requires courts to enforce arbitration agreements according to their terms. But arbitration is a matter of contract, and the FAA does not allow a court to compel arbitration unless it is satisfied that the parties agreed to arbitrate. If the existence of the agreement is not genuinely disputed, the court must compel arbitration.These principles apply equally to so-called “clickwrap” agreements, in which users assent to terms by clicking a button near a disclosure referencing those terms. Under Florida law, the central question is whether the parties mutually assented to be bound. In the Eleventh Circuit's recent ruling, Lamonaco v. Experian Inform. Sols., Inc., 2025 WL 1831283 (11th Cir. July 3, 2025), because Experian submitted competent and unrebutted evidence of an agreement to arbitrate, the federal district court for the Middle District of Florida erred in denying its motion to compel arbitration. Relying heavily on Bazemore v. Jefferson Capital Systems, LLC, 837 F3d. 1325 (11th Cir. 2016), appellee argued that a declaration was insufficient to prove that she had agreed to arbitrate her claims. She also claimed that Experian had by its litigation conduct waived its right to insist on arbitration. The district court denied the motion to compel arbitration, finding that the declaration submitted in support of the motion offered only conclusory assertions and rested on business records not attached to the declaration. The district court also held that Experian had waived its right to insist on arbitration which it then appealed. The Eleventh Circuit reversed, holding that the district court erred on both issues. Because the arbitration agreement delegated to the arbitrator “all disputes over the interpretation, applicability, or enforceability of the arbitration agreement,” and an amendment to the agreement stated specifically that the delegation included questions of waiver, whether Experian waived its arbitration right was for the arbitrator to decide. See more here-- https://tinyurl.com/2u45se7k and https://media.ca11.uscourts.gov/opinions/pub/files/202411270.pdf

CMS SNF Arbitration Rules Revised

A couple of years ago, the Centers for Medicare and Medicaid Services (CMS), an agency under Health and Human Services (HHS), had essentially barred any skilled nursing facility (SNF) that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It was the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in decades. The nursing home industry maintains arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry says, could drive up costs and force some homes to close. This was the case in the early 2000s, when many excess verdicts were recorded in Florida, forcing players out of the state or out of business altogether. Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. When CMS essentially barred any agreements requiring residents to resolve any disputes in arbitration, federal courts were quick to issue injunctions in industry suits. Now, CMS has issued proposed regulations with an effective date this week. The final rule (CMS 3342-F) will allow CMS to regulate SNF arbitration agreements, but this does not apply to agreements signed before September 16, 2019. If a dispute is settled through arbitration, a copy of a signed agreement and arbitration award must be kept for five years and available for inspection by CMS. Some providers went back to court to claim the amended arbitration rule is in violation of the Federal Arbitration Act (FAA) and that neither CMS nor HHS has the “statutory authority” under the Medicare and Medicaid acts to regulate alternative dispute resolution. I have conducted long-term care arbitrations, usually serving as the chair of a panel. These are difficult cases and are sometimes better suited to be resolved in private before knowledgeable and fair neutrals, rather than presented to juries. Arbitration of health care cases can be streamlined for counsel, saving the parties costs and often providing a quicker result than the courts. See more in trade publications here-- https://tinyurl.com/y4v5skyc and https://tinyurl.com/y4yaehk3

SCOTUS: Arbitrability is for Arbitrator not Court

This week, in what happened to be Justice Kavanaugh's first opinion on the U.S. Supreme Court, an arbitration ruling in a case centered on whether courts can prevent arbitrators from deciding if an issue can be arbitrated at all. Many parties prefer to arbitrate claims because the process is sometimes cheaper and faster than traditional litigation in court which also carries a greater risk of large damages awards by juries. This case arose in a contract dispute between a dental equipment distributor and a manufacturer. Their contract provided that disputes arising from the agreement would be resolved in arbitration, except in instances where one party sought an injunction. The Supreme Court found unanimously in Henry Schein, Inc. v. Archer & White Sales, Inc., that under the Federal Arbitration Act (FAA), a lower court must enforce an arbitration agreement that requires the arbitrator to decide whether a dispute should be decided in arbitration, regardless of the court’s view of the merits of the request for arbitration. When a contract allows arbitrators to decide whether a dispute can be resolved through arbitration, “a court may not override the contract." The holding states the “wholly groundless” exception to arbitrability is inconsistent with the FAA and Court precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. The Supreme Court has long held that the FAA allows the parties to a contract to decide whether an arbitration agreement will extend to those gateway questions, explaining that courts must compel arbitration of the gateway questions whenever the agreement includes “clear and unmistakable evidence” that the parties delegated the decision of those questions to the arbitrator. See stories here-- https://bit.ly/2FqySH1 and https://fxn.ws/2M2c41x and opinion here-- https://bit.ly/2CXAgPw

More Arbitration Argument Before SCOTUS

Today, the U.S. Supreme Court (SCOTUS) has oral arguments in two arbitration cases. In the first matter, Henry Schein, Inc. v. Archer & White Sales, Inc., the justices consider if a judge or an arbitrator should decide if a particular dispute should be resolved in arbitration rather than in court. In the second case, Lamps Plus Inc. v. Varela, the issue is whether the Federal Arbitration Act (FAA) precludes state law interpretation of arbitration contracts allowing for class arbitration and who decides whether a particular dispute should be decided in arbitration rather than a court. SCOTUS has already recognized that arbitrators decide issues of arbitrability if the parties clearly and unmistakably agree the arbitrator can assess whether any particular dispute is sufficiently related to the contract to warrant arbitration. Apparently, the U.S. Court of Appeals for the 5th Circuit will not send a case to the arbitrator decide the question of arbitrability, even if the parties have agreed that the arbitrator should decide such questions, if the court finds the claim of arbitrability wholly groundless. The contract in the first case mentioned above provided for arbitration of any dispute arising under or related to the contract, except for actions seeking injunctive relief. The complaint sought damages for Sherman Act violations, as well as injunctive relief. The defendants sought arbitration, arguing the thrust of the complaint was to seek damages, and that injunctive relief could issue after the arbitrator ruled on the merits. Lower courts refused to send the matter to arbitration, finding the request for arbitration groundless because of the inclusion in the complaint of a count for injunctive relief. Because SCOTUS already decided parties can delegate issues of arbitrability to an arbitrator in precedents that do not include exceptions for cases in which courts regard the request for arbitration as groundless, a reversal is likely given recent trends in favor of arbitration. The second case hinges on whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer did consent to class arbitration when it included language in the arbitration contract that committed the parties to use arbitration in lieu of any and all lawsuits or other civil legal proceedings. This case too may find itself going back, but on procedural grounds as the FAA dictates that an appeal may not be taken from an interlocutory order directing arbitration to proceed. See more here-- https://bit.ly/2AzcN6e and https://bit.ly/2JodgdX and https://bit.ly/2w5K2O8

Arbitration Fairness Act of 2015

There is a new bill in Congress to amend Title 9 of the United States Code with respect to arbitration over which increasing debate on fairness as a pre-dispute agreement has intensified. The Arbitration Fairness Act of 2015 was introduced by Minnesota Senator Al Franken and Georgia Representative Hank Johnson to eliminate mandatory arbitration clauses in employment, consumer, civil rights and antitrust cases. Companies provide almost all consumer financial products and services under written contracts with such clauses. Arbitration agreements in those contracts often require that parties resolve any subsequent disputes through privately-appointed arbitrators, rather than through the court system. The use of arbitration clauses has increased with recent U.S. Supreme Court decisions supporting corporate enforcement efforts of those agreements. A Consumer Financial Protection Bureau (CFPB) report found that 75% of consumers surveyed did not know if they were subject to an arbitration clause in their credit card contract. Among consumers whose contract included an arbitration clause, fewer than ten percent recognized that they could not sue their credit card issuer in court. It is claimed so-called "forced arbitration" does not provide important procedural guarantees of fairness and due process that are the hallmarks of courts of law. According to Senator Franken’s office, the Arbitration Fairness Act would restore the intent of the original Federal Arbitration Act (FAA) passed by Congress in 1925. When the FAA was passed, it was intended to target commercial arbitration agreements between two companies of generally comparable bargaining power. Over the years, court decisions broadened the reach of the law to include consumer and employment disputes. Under the newly introduced Arbitration Fairness Act of 2015, agreements to arbitration of employment, consumer, civil rights and antitrust disputes could only be made after the dispute has arisen. The Act does not prohibit companies and consumers from going to arbitration to settle a dispute once the dispute has actually taken place. The Act reportedly seeks to ensure transparency in civil litigation by protecting the integrity of Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, among others. The Act would continue to allow pre-dispute mandatory arbitration to continue in business-to-business agreements, and does not apply to collective bargaining agreements. The National Consumer Law Center and the National Association of Consumer Advocates support the new measure. Both proponents and critics of the new act take hard-line stances on the perceived ills or benefits of arbitration, rather than trying to address some criticisms while preserving its benefits. Under the Bill, the applicability of an agreement to arbitrate and the validity and enforceability of an agreement is to be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement. See proposed legislation here-- http://1.usa.gov/1GC7gEr and CFPB report to Congress here-- http://1.usa.gov/1EPG8nT

No Waiver of Judicial Review of Fee Arbitration

In a recent decision out of the US Court of Appeals for the Ninth Circuit, a panel ruled that parties cannot contractually eliminate judicial review of arbitral awards under the Federal Arbitration Act (FAA). The underlying dispute concerned attorneys' fees in connection with the settlement of a class action lawsuit. Counsel could not agree on how to divide the legal fees and submitted the dispute to arbitration. Following the issuance of an award that allocated the fees among them, the lawyer that received the most money petitioned a federal district court to confirm the award under the FAA. An attorney who received the second highest amount moved to vacate the award. After the district court granted the petition to confirm and denied the motion to vacate, the decision was appealed. The appellee argued that the appellate court lacked jurisdiction due to an arbitration clause that provided made it both binding and non-appealable. The Ninth Circuit rejected that argument and held that federal court review of arbitration cannot be waived or eliminated by contract. The court found the arbitration language was ambiguous, as it could be understood to preclude review of the merits or interpreted to divest courts of any right to review awards. The court noted that permitting parties to opt out of judicial review of arbitral awards under the FAA would frustrate a minimum level of due process for parties ensured by Congress. See article here- http://bit.ly/Mrw3pv and decision here-- http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/17/11-17718.pdf