Courts have recently ruled on various issues of arbitrability:
- A party which commenced, and lost, an arbitration sought vacation of the award on the basis that the arbitration clause was unconscionable. The court rejected the claim, finding the party judicially stopped to make the argument since he had invoked the clause to commence the arbitration after the insurer filed a declaratory judgment action against him. Pegues v. Progressive Northern Ins. Co., No. 2008AP1500 (Wisc. Ct. App. Feb. 25, 2009).
- A court compelled arbitration, rejecting an argument that mandatory arbitration provisions in an employment contracted were unconstitutional under the due process provisions of the Fifth Amendment to the Constitution because the claimant did not have the same procedural and discovery rights in arbitration that she would have had in litigation, were procedurally and substantively unconscionable and violated her Seventh Amendment right to a jury trial. Forbes v. A. G. Edwards & Sons, Inc., Case No. 08-552 (USDC S.D.N.Y. Feb. 18, 2009).
- A court denied a motion to compel arbitration, finding that providing an arbitration agreement to a new employee for agreement by e-mail was valid, but that there was insufficient proof that the employee had agreed to the provision. Kerr v. Dillard Store Services, Inc., Case No. 07-2604 (USDC D. Ks. Feb. 17, 2009).
- An appellate court affirmed the denial of a motion to compel arbitration since the plaintiff did not agree to arbitrate, and the contract containing the arbitration provision did not cover the parties to the action. Ins. Corp. of N.Y. v. Kenning Mgmt. of Ct., LLC, 2009 NY Slip Op 01541 (N.Y. App. Div. Mar. 3, 2009).