Arbitration

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Photo of Eric Hudson

Our clients generally prefer arbitration to litigation. Arbitration is less expensive, has much more balanced discovery, and it’s faster. It’s probably not statistically significant, but we think we’ve seen an uptick in cases in our practice footprint involving arbitration clauses. The cases we’ve blogged about recently involve some kind of direct interaction with a patient where a manufacturer can include an arbitration clause in the terms of a contract. Examples include the on-line sale of dental aligners and a glucose monitoring app for a patient’s smartphone. Today’s decision, Johnson v. Luminary Genetics, 2026 WL 2886002 (S.D. Cal. Sept. 25, 2026), is another instance where a manufacturer included an arbitration clause in its contract with a consumer—this time in the context of genetic testing.

Continue Reading Arbitration and Genetic Testing
Photo of Bexis

Arbitration, if done right, is an effective, speedy, and low-cost alternative to civil litigation of all kinds, which is why the other side (or at least the lawyers representing them) hates it.  Unfortunately, with prescription medical products − and their necessary learned intermediary physicians – arbitration doesn’t come up very often in our line of work, although nothing inherent in personal injury litigation precludes mandatory arbitration.

But it might happen more, in the future.  In a think piece we published a couple of years ago, on software liability, we identified arbitration as one of the consequences in litigation where intermediaries (“learned” or otherwise) were out of the picture.  “In direct-to-consumer contexts, providers routinely seek to use contracts such as click-wrap licenses to allocate software-related liability including limitations on liability, forum selection clauses, compulsory arbitration and similar protective measures.”

But our clients might, at least in certain situations, be able to enjoy both the learned intermediary rule as well as mandatory arbitration.

Continue Reading Oye Cómo Va?  To Arbitration.
Photo of Steven Boranian

We first mused over arbitration and drug/medical device claims exactly six years ago, when the United States Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).  In that widely studied opinion, the Supreme Court held that the Federal Arbitration Act preempted state laws limiting the enforceability of class…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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