Arbitration or litigation: The battle continues
Vol. 78, No. 2 / March - April 2022
Cameron A. Roark
Cameron A. Roark is an associate in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde P.C. He received his bachelor’s degree from the University of Missouri-St. Louis and juris doctorate from the University of Missouri-Kansas City. Many thanks to W. Dudley McCarter for his advice in preparing this article.
Arbitration is on the rise throughout Missouri and the nation, and many continue to battle with whether a dispute should go to arbitration or proceed in the courts.
There are two possibilities that could happen in this context: (1) one party files a lawsuit and the other party files a motion to compel arbitration, or (2) a party files for arbitration and the other party files a lawsuit to stay arbitration.
This article explores the law revolving around arbitration in general and the most recent case law dealing with motions to compel or to stay arbitration. Additionally, this article hopes to clarify the case law when a motion to compel or stay arbitration is filed and the steps that follow.
What is arbitration?
Arbitration is a method of resolving disputes amongst different parties. It is an alternative and private dispute resolution procedure by which the parties agree to present their dispute to a private forum consisting of an arbitrator, or sometimes several, sitting in a panel, which decides the claims after hearing testimony and evaluating evidence. A party then will file an application to confirm the award from the arbitration which the court shall confirm, unless another party has requested to vacate or modify the arbitration award
An arbitration decision that is binding can only be vacated on very narrow grounds in Missouri. These grounds include, inter alia: (1) “[t]he award was procured by corruption, fraud or other undue means;” (2) “[t]here was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;” (3) “[t]he arbitrators exceeded their powers;” (4) “[t]he arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provision of section 435.370, as to prejudice substantially the rights of a party;” or (5) “[t]here was no arbitration agreement and the issue was not adversely determined in proceedings pursuant to section 435.355 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.” An arbitration decision is extremely difficult to overturn on appeal.
Arbitration proceedings are favored under the law and encouraged without resorting to the courts. Because of the differences between litigation and arbitration, a party may prefer one over the other depending on the facts or law governing the case. “A motion to compel arbitration is a separate but ancillary proceeding, seeking an equitable remedy: specific performance of a term in a contract.” It determines whether the original lawsuit filed in a court will be sent to arbitration instead.
Procedural steps of filing motions to compel
Normally, a motion to compel arbitration follows a lawsuit filed in the circuit courts. The defendant(s) will then file the motion alleging the case should go to arbitration rather than proceed in the circuit court. The party seeking to compel arbitration that has the burden of proof to show a valid arbitration agreement exists. If both parties agree that there is an agreement to arbitrate, the circuit court should compel arbitration. However, if the plaintiff contests whether there is an agreement to arbitrate, the circuit court shall hold a hearing to determine the existence of the alleged arbitration agreement. The circuit court will then make factual findings on whether there is an agreement to arbitrate. If there isn’t one, the judge will deny the motion and the case will proceed with the circuit court. If the circuit court finds there is an agreement to arbitrate, then the court will grant the defendant’s motion and the case will proceed with a private arbitrator if there is no other dispute. If either party appeals the circuit court’s order regarding whether there is an agreement to arbitrate, those findings are reviewed under the Murphy v. Carron standard.
What law governs arbitration?
Arbitration is governed by §§ 435.350 to 435.470 of the Missouri Uniform Arbitration Act (MUAA) and the Federal Arbitration Act (FAA) under 9 U.S.C. §§ 1 to 9. The FAA governs enforceability of “all contracts involving interstate commerce.” However, both the FAA and MUAA establish that arbitration agreements are enforceable except “upon such grounds as exist at law or in equity for the revocation of any contract.” The courts apply state-law contract defenses in connection with the FAA’s savings clause. Additionally, state courts have concurrent jurisdiction over actions brought under the FAA. In Missouri, insurance contracts and contracts of adhesion are not entitled to have enforceable arbitration agreements.
Additionally, § 435.460 of the Revised Statutes of Missouri mandates that each contract containing an arbitration clause have a specific notice in the contract. Specifically, “[e]ach contract subject to the provisions of sections 435.350 to 435.470 shall include adjacent to, or above, the space provided for signatures a statement, in ten point capital letters, which read substantially as follows: ‘THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.’” Missouri courts have interpreted the logical purpose of § 435.460 as notifying parties that their contractual agreement includes a provision for arbitration. However, if the contract is simply an agreement to arbitrate, the notice under § 435.460 RSMo is not required.
“Existence of the agreement to arbitrate is a prerequisite to compelling arbitration”
The law on arbitration continues to be a pendulum. In January 2020, the Supreme Court of Missouri decided in Theroff v. Dollar Tree Stores, Inc. that the “[e]xistence of the agreement to arbitrate is a prerequisite to compelling arbitration.” The case presented “the question of whether there was, in the first instance, assent to the arbitration agreement.” There was a challenge to the agreement’s existence, the Court noted.
Prior to the Court’s opinion in Theroff, it was understood that “[d]isputes over the formation of the parties’ arbitration agreement … have been considered threshold issues of arbitrability.” When there is a delegation clause in an agreement, it delegates threshold issues of arbitrability to the arbitrator. The arbitrator assigned to the case would then have the responsibility to determine whether there was a formation of contract – not a circuit court. Theroff clarified there must be a valid actual agreement before sending the case to arbitration.
Facts of Theroff
Nina Theroff applied for employment with Dollar Tree and informed the assistant manager during her interview that she was legally blind and needed assistive devices. A couple days later, Theroff returned to Dollar Tree to complete the hiring paperwork electronically, and one of those forms was a mutual agreement to arbitrate claims, which ultimately Theroff electronically signed. Theroff later sued Dollar Tree for constructively discharging her because the company refused Theroff’s reasonable accommodation request for a service dog to accompany her at work. Dollar Tree filed a motion to compel arbitration and stay proceedings. Theroff argued there was no assent to the arbitration agreement, while Dollar Tree argued there was assent. The circuit court held an evidentiary hearing on the motion to compel to determine whether there was assent.
The evidentiary hearing produced “conflicting evidence about Theroff’s knowledge of the existence of the mutual agreement and her electronic signature on it.” Theroff’s evidence showed: (1) when she returned to Dollar Tree to complete the hiring paperwork, she did not have knowledge the hiring paperwork would occur on a computer; (2) she only brought a small magnifier; (3) Theroff informed the manager it would take a significant amount of time for her to complete the forms; (4) the manager offered to assist Theroff with the forms; (5) she was unable to see the content on the screens, and the manager would orally state what the forms were; (6) Theroff stated the manager never mentioned arbitration, waiver of a jury trial, or JAMS rules; and (7) the manager would simply state specific information needed and Theroff would orally tell her.
The Dollar Tree manager: (1) stated she did not help Theroff navigate the documents online; (2) disputed that Theroff was legally blind or that Theroff stated she had any vision issues requiring assistive devices; (3) denied electronically signing the mutual agreement for Theroff; and (4) denied fielding any questions from Theroff concerning the mutual agreement.
The circuit court overruled the motion to compel arbitration and stay proceedings. The defendants appealed the circuit court’s order overruling their motion to compel arbitration of Theroff’s claim of disability discrimination. The Supreme Court of Missouri affirmed the circuit court’s order.
Law of Theroff
When a party disputes signing an arbitration provision, the court – not the arbitrator acting under a delegation clause – must first decide the existence of an agreement to arbitrate. The trial court shall hold an evidentiary hearing to determine whether there was a valid agreement to arbitrate once a disagreement about the existence of an agreement to arbitrate is raised. “Even in the absence of live testimony, the requirements of an evidentiary hearing are met if, (1) the trial court is provided with adequate materials and evidence with which to resolve any factual disputes; and (2) there is no allegation the parties were limited in [their] submission of the evidence by the trial court or that the trial court failed to consider any evidence presented by the parties.” The party seeking to compel arbitration has the burden of proof to show a valid arbitration agreement exists.
Additionally, basic contract principles apply when deciding if there is a valid agreement. The court looks at whether there was an offer, acceptance, and bargained-for consideration. Assent is also required for a contract or an agreement to exist: “It is a well[-]settled principle of law that to constitute a contract[,] the minds of the parties must assent to the same thing in the same sense.” Additionally, “[m]utuality of contract means that an obligation rests upon each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” However, as long as a contract meets the consideration requirement, “an arbitration clause in the contract will not be invalidated for a lack of mutuality of the obligation to arbitrate.” But, it is important to note that a signature is not required to demonstrate acceptance because assent can be shown in other ways.
The court is the gatekeeper and must first determine the legality, validity, and enforceability of the agreement as a whole. “[A]rbitration agreements are tested through a lens of ordinary state-law principles that govern contracts, and consideration is given to whether the arbitration agreement is improper in light of generally applicable contract defenses.” That means that an arbitration agreement “could be declared unenforceable if a generally applicable contract defense, such as fraud, duress, or unconscionability, applied to concerns raised about the agreement.”
An example of determining the legality, validity, and enforceability of an agreement includes an illusory promise. A promise to arbitrate “is illusory when one party retains the unilateral right to amend the agreement and avoid its obligations.” In other words, “[a]n illusory promise does not make valid consideration.”
Further, “any act forbidden by legislative enactment, if passed for the protection of the public and providing for a penalty, cannot be the foundation of a valid contract.” In Schoene v. Hickam, the Supreme Court of Missouri quoted another court opinion that noted “[t]he illegality inhering at the inception of such contracts taints them throughout and effectually bars enforcement.” If the act done was prohibited by law, there cannot be a valid arbitration or delegation clause.
Is a specific challenge to the delegation provision required?
A “delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement.” These “gateway” issues include whether the parties agreed to arbitrate or whether certain controversies are covered under the arbitration agreement.
There has been a shift in the law regarding challenging delegation provisions in contracts. Prior to the Theroff decision, the Newberry, Soars, and Pinkerton cases required the party challenging the arbitration agreement to directly attack the arbitration provision and not the contract as a whole. Further, Newberry and Soars stated, “that a party must specifically challenge a delegation provision to avoid its application.”
Theroff explicitly stated, however, that “[t]o the extent Newberry, Soars, and Pinkerton can be read to suggest one can be forced into arbitration by a contract to which one is a stranger, this interpretation is incorrect.” In Theroff, the Supreme Court of Missouri stated, “Newberry, Soars, and Pinkerton presumed an arbitration agreement existed[;] these cases did not address the situation in which a party claimed she did not assent to an arbitration agreement in the first instance.”
If there was no valid agreement to arbitrate, a delegation provision is not effective. However, the delegation provision is important when the parties agree, or the circuit court finds, there is a valid agreement to arbitrate. “A court should determine if the contract in question falls within the coverage of the arbitration act before applying the act’s severability principle, requiring a challenge to an arbitration agreement, or delegation provision, separate from a challenge to the overall contract.” The existence of an agreement to arbitrate is a prerequisite to compelling arbitration, meaning a valid contract must exist before the issue of arbitration should be addressed. If there is no valid contract, there can be no arbitration or delegation under Theroff.
Concept of Severability
If there is a valid contract, then the concept of severability comes into play. Agreements to delegate issues of arbitrability create additional agreements subject to the regular laws of arbitration. In Rent-A Center, the U.S. Supreme Court stated a party must challenge the delegation provision under the FAA specifically. The question before the Court in Rent-A-Center was whether the district court was required to determine whether an arbitration agreement subject to the FAA is unconscionable, even when the parties to the contract have clearly and unmistakably assigned the issue to an arbitrator. The U.S. Supreme Court held that “a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.” However, in New Prime Inc. v. Oliveria, the U.S. Supreme Court “held that, prior to compelling arbitration, a court should decide whether there is a contract that falls within the boundaries of sections 1 and 2 of the [FAA].” New Prime “clarified that a court should not order arbitration until it has decided whether there is a contract evidencing a transaction involving commerce.”
Delegation provisions are subject to the severability principle, “meaning that the party opposing arbitration must challenge the delegation clause separately from the arbitration agreement itself.” Additionally, “[t]he challenge must directly and specifically address the delegation provision.” Even more,“[t]he court must consider the delegation provision ‘standing alone’ from the rest of the arbitration agreement.” Further, “[a] direct challenge is one that specifically addresses the delegation provision. A party must levy a specific challenge to the delegation to avoid its application.”
The party challenging the delegation provision “does not need to craft new arguments to separately challenge the delegation provision – she needs only to tailor those arguments to the delegation provision specifically.” However, there are cases holding that a plaintiff cannot rely upon the same arguments “they direct at the arbitration agreement as a whole; an approach specifically rejected by our courts.” It would appear that a party challenging the delegation provision should only discuss that provision. If the party brings other provisions into the challenge, a court may reject the argument as not being specifically tailored. Future litigation may reveal a single answer on how to attack the delegation clause.
“A delegation provision may be invalidated, revoked, or otherwise found unenforceable upon such grounds as exist in law or in equity for the revocation of any contract.” When there is no legally enforceable agreement from the beginning, a specific challenge to the delegation provision is irrelevant. It is not necessary for a party to specifically challenge the delegation provision as a “challenge to the existence of the mutual agreement in its entirety because of a lack of assent necessarily challenges the existence of any delegation provision it contains.” The Theroff court abrogated the proposition set forth in Newberry, Soars, and Pinkerton that if “the [a]greement as a whole contains illusory provisions [it] is for the arbitrator to determine so long as the delegation provision, standing alone, is valid.”
Lastly, the Theroff decision cited the recent U.S. Supreme Court opinion, New Prime Inc. v. Oliveira. Both courts noted a court’s authority to compel arbitration is not unconditional. “A court should determine if the contract in question falls within the coverage of the arbitration act before applying the act’s severability principle, requiring a challenge to an arbitration agreement, or delegation provision, separate from a challenge to the overall contract.”
After the trial court’s ruling
What happens after the trial court grants or denies the motion to compel arbitration? If the trial court denies the motion to compel arbitration, § 435.440.1, RSMo, gives the losing party the right to an immediate appeal. A denial of a motion to compel arbitration must be appealed within 10 days after the trial court’s denial or the appeal will be dismissed for being untimely. However, motions to compel arbitration that are granted by the trial court are not appealable. “Instead, a writ of mandamus is an appropriate mechanism to review whether a motion to compel arbitration was improperly sustained.” Of course, a writ of mandamus is discretionary and there is no right to issuance.
Generally, whether a party’s motion to compel arbitration should have been granted is a question of law which courts review de novo. Appellate courts will not give deference to the trial court under de novo review and will instead make a determination independently. The de novo standard will be used by appellate courts when there is no factual dispute about the existence of an arbitration agreement. Further, appellate courts will then make their own independent determination regarding compelling arbitration.
However, “in an appeal from a circuit court’s order overruling a motion to compel arbitration when there is a dispute as to whether the arbitration agreement exists, the circuit court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” This standard of review is usually referred to as the Murphy v. Carron standard. An example of this standard at play is in Duncan v. TitleMax of Missouri, Inc. Duncan challenged the existence of the arbitration agreement between him and TitleMax. The circuit court denied TitleMax’s motion to compel arbitration. Because Duncan challenged the existence of an agreement to arbitrate, the circuit court could be reversed under the Murphy v. Carron standard. TitleMax challenged the circuit court’s ruling arguing that substantial evidence did not support the circuit court’s order and it was against the weight of the evidence. The Missouri Court of Appeals-Western District found that there was substantial evidence to support the circuit court’s order and that it was not against the weight of the evidence. It is clear that when there is a dispute as to the existence of an arbitration agreement, there is greater deference given to the circuit court when it makes findings of fact. It is still too early to see how the standard will be carried out by the appellate courts in Missouri.
The battle over arbitration
You may question why parties fight over whether a case will proceed in a circuit court or go to a private arbitrator. There are numerous aspects lawyers consider when deciding whether to proceed to litigation or arbitration.
Litigation can be expensive, and lawyers can continuously file extensive motions with no end in sight, leading to higher costs for all involved. Discovery during litigation can be costly due to employees or executives taking time to answer questions or attend depositions. However, arbitration is generally not as expensive if discovery is limited, which also leads to fewer filings that need to be responded to by opposing counsel. But, most arbitrators now allow extensive discovery similar to litigation because of the high value of arbitration proceedings. As a result of the expanding discovery in arbitration, it potentially makes arbitration less advantageous than in the past.
Another major difference between litigation and arbitration is whether the proceedings are open to the public. Most court filings in lawsuits are public. Meanwhile, most arbitrations are private with little public record. That means arbitration disputes can continue past the media without much knowledge. Of the top Fortune 100, 81 companies have used arbitration agreements in connection with consumer transactions. Since arbitration is conducted in private and its outcome is typically kept confidential, underlying consumer problems may be kept hidden. For example, financial services company Wells Fargo opened approximately 3.5 million bogus bank and credit card accounts in the names of real customers. When customers found out, they tried to sue but were forced into arbitration and confidential settlements. It was not until the government got involved that the story was in the media.
It is no secret that litigation moves slowly. A lawsuit filed today in the United States can take 18-36 months to get to trial. This could be one of the biggest downsides to litigation. However, arbitration tends to move more quickly than litigation, which could benefit one party over the other. The average arbitration is approximately 20 months faster than the average trial; however, the time it takes for an arbitration to begin has been steadily increasing. This seems to be the case due to the size of disputes now going to arbitration rather than litigation.
Additionally, litigation can be unpredictable, which potentially leads certain parties to want arbitration proceedings. That unpredictability ranges from the selection of a jury to the uncertainty of a judge’s ruling on issues in the case. Jury selection can be one of the most important aspects for a case since lawyers are afforded great latitude when questioning potential jurors during voir dire. In Missouri, the typical number of jurors is 12. Importantly, the right of trial by jury is one of the basic rights afforded by the Missouri Constitution. Some will argue that arbitration interferes with such a right. However, Missouri courts have held that parties may contractually relinquish fundamental and due process rights such as waiving a jury trial or their right to present a claim to any judicial tribunal. In contrast, arbitration can be seen as more predictable to the participants because they chose at least one of the arbitrators, and the people who are chosen usually have industry experience. Arbitration may remove a lot of uncertainty that a jury may bring to a case when it comes to decision making. However, instead of 12 jurors deciding, it comes down to one arbitrator, or sometimes a panel of three. This clearly can have a significant impact on the outcome of a dispute. But nothing is guaranteed out of arbitration because there will always be some uncertainty.
One of the most significant differences between arbitration and litigation is the review process of the decision. In Missouri, the litigation appeal process can be extensive depending on the circumstances of each case. The Missouri Court of Appeals and/or Supreme Court of Missouri potentially could review an order from a trial court. This process could result in a party not getting relief for years. However, in exchange, several judges will review to make sure the law was properly followed. In contrast, most arbitration rulings have little ability to be reviewed in an appellate process. Section 435.405.1(1)-(5), RSMo, noted above, outlines strict review standards for arbitration.  “The appealability of arbitration decisions might be summed up in one, not all too inaccurate phrase, ‘forget it.’”
These differences, among others, play into this battle between wanting to proceed on a claim through litigation or arbitration. Missouri courts continue to deal with this battle over which adjudication process should be utilized. There is not much certainty regarding the future of this dispute. Parties will continue to fight over whether a judge and jury get to decide issues or whether a private arbiter does. One thing is certain, the battle continues.
Overall, a court must first determine whether there is a dispute regarding the existence of a contract and agreement to arbitrate. If there is a dispute, then the circuit court shall hold an evidentiary hearing to determine whether an agreement exists. If the circuit court finds there is no agreement, the arbitration and delegation clause is void. However, if the circuit court finds there is a valid agreement, the opposing party must specifically challenge the delegation clause in the contract instead of the whole contract under the severability doctrine. If there is a valid delegation clause, the arbitrator determines “gatekeeping” issues. But if there is no valid delegation clause, the court will make a determination whether an issue should go to an arbitrator or not. Missouri courts have continued to grapple with arbitration, and there is no doubt the battle will continue. Future court decisions will hopefully create more certainty regarding the battle between arbitration and litigation.
1 Cameron A. Roark is an associate in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde P.C. He received his bachelor’s degree from the University of Missouri-St. Louis and juris doctorate from the University of Missouri-Kansas City. Many thanks to W. Dudley McCarter for his advice in preparing this article.
2 TD Auto Finance, LLC v. Bedrosian, 609 S.W.3d 763, 768 (Mo. App. E.D. 2020).
3 Darren K. Sharp and Laurence R. Tucker, Traversing Legal Labyrinths in Arbitration, 66 J. Mo. B. 24, 24 (2010).
4 Section 435.400 RSMo (2016).
5 See § 435.405 RSMo (2016).
6 Section 435.405.1(1)-(5) RSMo (2016).
7 See Substantive appeals of awards in arbitration, 18A Mo. Prac. § 44:15 (3d ed.).
8 Lunsford v. Deatherage, 518 S.W.3d 890, 894-95 (Mo. App. S.D. 2017) (citing Riley v. Lucas Lofts Inv’rs, LLC, 412 S.W.3d 285, 290 (Mo. App. E.D. 2013)).
9 Keeling v. Preferred Poultry Supply, LLC, 621 S.W.3d 672, 677 (Mo. App. S.D. 2021).
10 See Motion to compel arbitration, 2A Mo. Prac. § 31.10 (4th ed.).
11 Duncan v. TitleMax of Missouri, Inc., 607 S.W.3d 243, 249 (Mo. App. W.D. 2020).
12 Section 435.355 RSMo (2016).
13 Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. banc 2020).
14 See id. at 437.
15 See id. at 439.
16 See TD Auto Finance, 609 S.W.3d at 770.
17 Theroff, 591 S.W.3d at 436.
18 State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015).
19 9 U.S.C. § 2; see also § 435.350 RSMo and Rose v. Sabala, 632 S.W.3d 428, 432 (Mo. App. E.D. 2021).
20 Brewer v. Missouri Title Loans, 364 S.W.3d 486, 491-92 (Mo. banc 2012).
21 See Bunge Corp. v. Perryville Feed & Produce, Inc., 685 S.W.2d 837, 839-40 (Mo. banc 1985).
22 Section 435.350 RSMo (2016).
23 Section 435.460 RSMo (2016).
25 State ex rel. Tri-City Const. Co. v. Marsh, 668 S.W.2d 148, 153 (Mo. App. W.D. 1984).
27 Theroff, 591 S.W.3d at 436.
28 Id. at 432.
29 Id. at 436.
30 Id. at 437.
31 Id. at 438.
32 Id. at 442 (J. Brent Powell, dissent).
34 See id.
35 See id. at 437.
36 Id. at 435.
40 Id. at 434.
41 Id. at 435.
46 Id. at 434.
47 Id. at 435.
48 Id. at 438-39.
49 Id.; see also § 435.355.1 RSMo (2016).
50 EM Medical, LLC v. Stimwave, LLC, 626 S.W.3d 899, 906 (Mo. App. E.D. 2021).
51 Duncan, 607 S.W.3d at 249.
52 Holm v. Menard, Inc., 618 S.W.3d 669, 674 (Mo. App. W.D. 2021); TD Auto Finance, LLC v. Bedrosian, 609 S.W.3d 763, 768-69 (Mo. App. E.D. 2020).
53 Theroff, 591 S.W.3d at 437 (quoting Green v. Cole, 15 S.W. 317, 318 (Mo. 1891)).
54 TD Auto Finance, 609 S.W.3d at 769.
55 Keeling, 621 S.W.3d at 677 (citing Eaton v. CMH Homes, Inc., 461 S.W.3d 426, 433-34 (Mo. banc 2015)).
56 Holm, 618 S.W.3d at 675.
57 Keeling, 621 S.W.3d at 677 (quoting Robinson v. Title Lenders, Inc., 364 S.W.3d 505, 515 (Mo. banc 2012)).
59 Harris v. Volt Management Corporation, 625 S.W.3d 468, 476 (Mo. App. E.D. 2021) (quoting Baker v. Bristol Care, Inc., 478 S.W.3d 423, 770 (Mo. banc 2014).
61 Hospital Development Corp. v. Park Lane Land Co., 813 S.W.2d 904, 908 (Mo. App. W.D. 1991).
62 Schoene v. Hickam, 397 S.W.2d 596, 602 (Mo. 1965) (quoting Garvin v. Gordon, 36 N.M. 304, 14 P.2d 264, 266 (1932)).
63 State ex rel. Schermerhorn v. Cordonnier, 616 S.W.3d 418, 421 (Mo. App. S.D. 2020) (quoting Fogelsong v. Joe Machens Automotive Group Inc., 600 S.W.3d 288, 293 (Mo. App. W.D. 2020)).
65 See Soars v. Easter Seals Midwest, 563 S.W.3d 111, 114 (Mo. banc 2018); see State ex rel. Newberry v. Jackson, 575 S.W.3d 471, 475 (Mo. banc 2019); see also State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 52 n.12 (Mo. banc 2017).
66 Soars, 563 S.W.3d at 116; see Newberry, 575 S.W.3d at 475; Pinkerton, 531 S.W.3d at 52 n.12.
67 Theroff, 591 S.W.3d at 439.
68 Id. at 437.
69 See id. at 439.
70 Id. at 440.
71 Id. at 436.
72 Id. at 440.
73 Harris, 625 S.W.3d at 475.
74 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 72 (2010).
76 Id. at 70.
77 139 S. Ct. 532 (2019).
78 Theroff, 591 S.W.3d at 440 (citing New Prime Inc. v. Oliveira, 139 S. Ct. 532, 537 (2019)) (J. Beckenridge concurring).
79 Id. at 441.
80 Harris, 625 S.W.3d at 475.
82 Id. (citing Soars, 563 S.W.3d at 117).
83 TD Auto Finance, 609 S.W.3d at 770.
84 Harris, 625 S.W.3d at 475; see Esser v. Anheuser-Busch, LLC, 567 S.W.3d 644, 650 (Mo. App. E.D. 2018).
85 Fogelsong v. Joe Machens Automotive Group Inc., 600 S.W.3d 288, 299 (Mo. App. W.D. 2020) (quoting Hughes v. Ancestry.com, 580 S.W.3d 42, 49 (M. App. W.D. 2019).
86 Fogelsong, 600 S.W.3d 288 at 299 (citing Hughes v. Ancestry.com, 580 S.W.3d 42, 48 (Mo. App. W.D. 2019)).
87 Theroff, 591 S.W.3d at 440.
88 Duncan, 607 S.W.3d at 248 (citing Theroff, 591 S.W.3d at 439).
89 Soars, 563 S.W.3d at 117; see Theroff, 591 S.W.3d at 440.
90 Theroff, 591 S.W.3d at 440 (citing New Prime Inc. v. Oliveira 139 S. Ct. at 537).
92 See § 435.440.1 RSMo (2016).
93 Sanford v. Century Tel of Missouri, LLC, 490 S.W.3d 717, 719 (Mo. banc 2016); § 435.440.1 RSMo (2016).
94 State ex rel. Schermerhorn v. Cordonnier, 616 S.W.3d 418, 420 (Mo. App. S.D. 2020).
95 Id. (quoting State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015)).
96 Curtis v. Missouri Democratic Party, 548 S.W.3d 909, 914 (Mo. banc 2018).
97 Theroff, 591 S.W.3d at 436.
98 Pearson v. Koster, 367 S.W.3d 36, 43-44 (Mo. banc 2012).
99 Theroff, 591 S.W.3d at 436.
100 Harris, 625 S.W.3d at 474 (quoting Theroff, 591 S.W.3d at 436 (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976))) (emphasis added).
102 Duncan, 607 S.W.3d at 248.
103 Id. at 247.
105 Id. at 249-51.
107 Six Key Differences Between Litigation and Arbitration, LexisNexis (Feb. 22, 2021), https://www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/six-key-differences-between-litigation-and-arbitration.
110 Kevin Mason, Will Discovery Kill Arbitration?, 2020 J. Disp. Resol. 207, 207-08 (2020).
111 Six Key Differences Between Litigation and Arbitration, supra note 110.
112 Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 U.C. Davis L. Rev. Online 233, 234 (2019).
113 Scott Medintz, Forced Arbitration: A Clause for Concern, Consumer Reports (Jan. 30, 2020), https://www.consumerreports.org/mandatory-binding-arbitration/forced-arbitration-clause-for-concern/.
116 Six Key Differences Between Litigation and Arbitration, supra note 110.
118 Mason, supra note 113.
120 Six Key Differences Between Litigation and Arbitration, supra note 110.
121 See id.
122 Voir Dire, 2 Mo. Prac. § 10.5 (4th ed.).
123 Six Key Differences Between Litigation and Arbitration, supra note 110.
124 Right to a jury trial, 2 Mo. Prac. § 10.1 (4th ed.).
125 Holm, 618 S.W.3d at 677.
126 Six Key Differences Between Litigation and Arbitration, supra note 110.
128 See Mo. Const. art. V, § 3.
129 Six Key Differences Between Litigation and Arbitration.
130 Section 435.405.1(1)-(5) RSMo (2016).
131 Substantive appeals of awards in arbitration, 18A Mo. Prac. § 44:15 (3d ed.).