In Arbitration, a ‘Privatization of the Justice System’
November 2, 2015

Over the last 10 years, thousands of businesses across the country — from big corporations to storefront shops — have used arbitration to create an alternate system of justice. There, rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients, The Times found. The change has been swift and virtually unnoticed, even though it has meant that tens of millions of Americans have lost a fundamental right: their day in court. “This...

Arbitration Everywhere, Stacking the Deck of Justice
November 1, 2015

Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home. Among the class actions thrown out because of the clauses was one brought by Time Warner customers over charges they said mysteriously appeared on their bills and another against a travel booking website accused of conspiring...

Article On Trust Arbitration Clauses
October 26, 2015

Matthew Conaglen (University of Sydney Faculty of Law) recently published an article entitled, Trust Arbitration Clauses,...

Disarming Employees: How American Employers are Using Mandatory Arbitration to Deprive Workers of Legal Protection
October 24, 2015

Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a miniscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses...

Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines
October 22, 2015

Northeastern University School of Law Professor Brook K. Baker and Katrina Geddes, Master in Public Policy Candidate at Harvard University’s Kennedy School of Government, have written a thought provoking article entitled, “Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines – Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement,” Northeastern University School of Law Research Paper No. 242-2015. In their scholarly paper, the authors examine investor-state...

SCOTUS Continues to Wrestle with Post-Concepcion Fallout
October 22, 2015

In DIRECTV, Inc. v. Inburgia, SCOTUS is addressing the enforceability of an arbitration clause with a class-action waiver. The clause provides that the entire arbitration clause is invalid if state law prohibits class action waivers. At the time the agreement was written, California law clearly prohibited class action waivers. SCOTUS subsequently ruled that California's law must yield to the Federal Arbitration Act. According to the SCOTUSblog entry on the case, the issue in the case is "Whether...

A Win for the Patriots scores a Touchdown for Arbitration
October 20, 2015

Judge Berman recognized that the standard for review of arbitral awards under the FAA 9 U.S.C. Section 10 is a deferential one, yet nonetheless he noted that “the deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process.” Judge Berman focused on numerous instances in the arbitration where Brady was not given a fair hearing, including the fact that Brady was never provided...

What is a Reasoned Award?
October 20, 2015

Experienced Arbitrators and advocates frequently use boilerplate terms without pausing to decide what they actually mean. The undoubtedly unanticipated consequence of such casual usage of the term “reasoned award” was on full display on October 8, when the Houston First Court of Appeals issued its opinion in Stage Stores, Inc. v. Gunnerson, addressing a question of first impression: what is meant by the term “reasoned award” in an arbitration clause and, correspondingly, what must an Arbitrator...

CFPB Proposal Would Allow Consumers to Forego Arbitration in Favor of Class Litigation
October 20, 2015

The Consumer Financial Protection Bureau (“CFPB”) is reportedly considering implementing new regulations that would stop...

Sternlight: Musings from the CFPB Field Hearing
October 19, 2015

This dispatch comes from frequent guest blogger Jean Sternlight (UNLV). I am writing this blog having just returned from...