Articles on arbitration
The New York Times has come out with a pair of articles about arbitration. They shed light on how arbitration clauses have damaged the quality and availability of civil justice for most Americans.
Continue Reading Why You Should Read “Beware the Fine Print”
In 2016, despite contracts that mandate one-on-one arbitrations, consumers will likely gain the right to bring claims against banks, credit card issuers, and other lenders in class actions. The new rule, which the Consumer Financial Protection Bureau announced on October 7, 2015 it will probably issue next year, will partially reverse a string of recent Supreme Court decisions that made class-banning arbitration clauses broadly enforceable.
The action by the Bureau will vastly raise the stakes for disputes involving practices affecting large numbers of consumer finance customers.
Continue Reading Banning Bans on (Some) Class Cases
In 2010, when it passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress created the Consumer Financial Protection Bureau as a watchdog for consumers who buy financial products and services. The CFPB’s mission included looking at the effect of arbitration clauses in consumer contracts and proposing rules to regulate them if appropriate.
Concepcion in question
Last week, the Ninth Circuit found a way around the U.S. Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). The panel held, 2-1, that a qui tam-like claim differs enough from a state-law class action claim to take it beyond Concepcion‘s preemptive reach.
The ruling means, in the Ninth Circuit, that Concepcion will not allow defendants to use arbitration clauses to defeat claims that private plaintiffs bring on behalf of the state and that defendants may therefore face individual cases, in court or arbitration, that put far more than the individuals’ claims at stake.
Continue Reading Qui Tam-Like Claim Eludes Arbitration Act Oblivion — For Now
Better results
Lawyers who like to handle disputes on a basis that shares risk with their clients often prefer the speed and lower cost of arbitration. The process has its drawbacks; some people worry about fuzzy standards and the lack of review for legal errors. And some general counsel even swear that it costs just as much and takes every bit as long as a lawsuit.
To which I say: hire somebody who will work on a contingent-fee or hybrid basis. You’ll get better, more efficient results faster.
But sometimes courts render rulings that seem to put arbitration into a second-class legal stratum, a minor league of law, a dustbin of dispute resolution. The Eighth Circuit did such a thing just this week.
The class-action variety of plaintiffs’ lawyer abhors the federal Arbitration Act.
You can see why. The Supreme Court has turned the FAA into a class action killer. See AT&T Mobility LLC v. Concepcion, 563 U.S. 321 (2011) (holding that FAA pre-empts state law against bans on class treatment of claims), and Am. Express Co. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (holding that FAA requires enforcement of class action ban even if it thwarts claimants’ ability to vindicate their rights).
But a new FAA ruling by the Second Circuit may afford some comfort to other plaintiffs’ lawyers. Not a lot. Some.
Continue Reading Stay or Go?