Going Beyond the Docs: Those Other Proofs that Support the Damages

Since we pick-up new Readers throughout the year…here’s a quick reminder for Advocates of those seven core kinds of Evidence inherent in subrogation Arbitration cases. We have Direct, Documentary, Real, Opinion, Demonstrative, Hearsay and Circumstantial. So how can a presenter leverage other proofs (beyond Documentary) to help support the Damages argument?

Since Credibility and Reliability are always on the line as Arbitrators evaluate cases; here are some thoughts. Be aware of rather standardized language from the adverse that infers a pattern of unilaterally challenging Damages irrespective of the facts of the case. Address this in your Contentions to showcase that the Evidence in your claim is distinct and the Damages awardable. Be keen to where the adverse cites something as a ‘Rule’ the Arbitrator should follow. Is it a ‘Rule’ or a ‘Guideline’? Example – saw a case where a party said ‘by Rule’ a photograph was not required to prove Damages. Again, is that a ‘Rule’ or a ‘Guideline’ to Arbitrators from the provider administering the case. As advocate…be assertive and challenge the inaccuracy. Be aware of comments from the adverse that are uncorroborated. They offered your insured apologized at the scene, but show no connection (for the Arbitrator) to any Evidence that displays this. You highlight in your Contentions this lack of proof as it speaks to truthfulness of the case. If that statement is unfounded what else in the adverse case might also be unsupported.

How about your Police Report; video from the loss or witness statements that display an effort to obviate responsibility (such as the adverse attempted to flee the scene). You utilize that Evidence for Persuasive Impact! Leverage your other proofs; go beyond the Docs.

 

Case Presentation 101 is produced by Claims Resource Services; one of the nations top arbitration and subrogation services firms.  The writer Kevin Pike can be reached at kpike@claimsresource.comand has daily tips on arbitration via Twitter: @Arb2Win

 




Drawing Back On Predesign: Shortchanging Your Storyline




Storytime Template: Outlining The Greater Good




Reinforcing Your Theme Are You Calling The Arbitrator To Action?




Suddenly And Without Warning The Impact You’re Making




Where Are You Now? Your Approach; Your Position




The Epilogue: Did We Win? How Am I Going to Defeat Your Arb




Seems like I May Be Right After All on One of My 2015 Predictions – Just a Little Late

Seems like I May Be Right After All on One of My 2015 Predictions – Just a Little Late

 

by George H. Friedman*

SAC Contributing Legal Editor and Board of Editors Member

[This was originally published in the author’s blog at the Securities Arbitration Commentator. It was adapted and updated from several postings originally published in the Arbitration Resolution Services, Inc. blog. Reposted with permission of and thanks to SAC!]

Readers of my blogs here and at Arbitration Resolution Services may recall how I fared on one of my predictions for 2015. To refresh your recollections, prediction #4 for 2015 was “SCOTUS will rebuke the National Labor Relations Board on its anti-arbitration policy.” That didn’t happen in 2015, but it turns out I may just have been too aggressive in my timetable. In recent weeks, three petitions for certiorari have been filed seeking SCOTUS review of this very issue. And as discussed below I am confident the Supreme Court will take up at least one of these cases to resolve a major split among the Circuits.

What’s the Issue?

Back in 2014 I wrote a blog post, NLRB is Cruisin’ for a Bruisin’ on its Anti-Arbitration Policy, that captured the essence of the issue. Section 2 of the Federal Arbitration Act (“FAA”) states that arbitration agreements are enforceable “… save upon such grounds as exist at law or in equity for the revocation of any contract.” The is known as the “savings clause” because it creates a window whereby some predispute arbitration agreements (“PDAA”) may not be enforced under the FAA.

 

The Supreme Court held in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), that PDAAs containing class action waivers (“CAWs”) were enforceable under section 2 of the FAA, and that a state rule of law prohibiting such waivers was preempted by the FAA. Two years later the Court in American Express Co. v. Italian Colors Restaurant, 570 U.S. ___, 133 S. Ct. 2304 (2013), addressed the validity of a PDAA that required an individual to waive the right to participate in a class action litigation and to individually arbitrate a claim arising out of a federal statute. The Court enforced the PDAA even though proving the claim in an individual arbitration might be costly compared to a class action litigation.

 

And this has what to do with the NLRB?

As my kids would say, “Yes, but what does this have to do with the NLRB?” In 2012, the Board ruled in D.R. Horton Inc., 357 NLRB No. 184 (2012), that class action waivers in PDAAs violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) because the class action waiver unduly interfered with the employees’ right to “concerted activities” protected by section 7. This case eventually found its way to the Fifth Circuit, which reversed this part of the Board’s ruling, in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013): “Because the Board’s interpretation does not fall within the FAA’s ‘saving clause,’ and because the NLRA does not contain a congressional command exempting the statute from application of the FAA, the Mutual Arbitration Agreement must be enforced according to its terms.”

 

My 2015 Prediction: “SCOTUS will rebuke the National Labor Relations Board on its anti-arbitration policy.”

Despite the fact that a federal circuit court in Horton, relying heavily on several Supreme Court holdings, had expressly overruled the NLRB’s take on class action waivers, some of the Board’s administrative law judges continued to issue rulings ignoring Horton. So, I wrote in early 2015: “sooner or later, the Supreme Court will – in ‘read our lips’ fashion – deliver the message that class action waivers in PDAAs are enforceable under the FAA … and the NLRA. Specifically, sooner or later, the Supreme Court is going to hit the NLRB with a 2 x 4 over its rulings on class action waivers in arbitration clauses in employment agreements.”

What happened in 2015: While The NLRB continued to thumb its at the Fifth Circuit, it escaped that 2 x 4 from SCOTUS in 2015. It was, however, hit pretty hard by a federal Circuit Court of Appeals. In Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), the Court delivered a unanimous, stinging rebuke to the NLRB: “Our decision [in Murphy Oil] was issued not quite two years ago; we will not repeat its analysis here. Murphy Oil committed no unfair labor practice by requiring employees to relinquish their right to pursue class or collective claims in all forums by signing the arbitration agreements at issue here” (citations omitted).

My updated prediction as we headed into 2016 was: “Sooner or later this issue will end up before SCOTUS.”

 

Sooner or Later is here: A Major Split in the Circuits

Decisions in recent months have resulted in a major split between the federal circuits:

  • First came Lewis v. Epic Systems, Inc., 823 F.3d 1147 (7th May 26, 2016), where a unanimous Seventh Circuit held that a class action waiver in an employment arbitration agreement violated the NLRA. The Epic Systems Court said: “In short, Sections 7 and 8 of the NLRA render Epic’s arbitration provision unenforceable … We conclude that, insofar as it prohibits collective action, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA.”
  • Just a week after Epic was decided a unanimous Eighth Circuit in Cellular Sales of Missouri LLC v.  NLRB, 824 F.3d 772 (8th June 2, 2016), held that enforcing the PDAA is permitted by the NLRA, but the PDAA’s chilling effect on filing unfair labor charges is not.
  • In mid-August the Fifth Circuit in a tidy, two-page, unpublished per curiam ruling in Citi Trends, Inc. v. NLRB, 15-60913 (5th Cir. Aug. 10, 2016), found that it must follow the precedent it established in Horton and Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), which hold that “an employer does not engage in unfair labor practices by maintaining and enforcing an arbitration agreement prohibiting employee class or collective actions and requiring employment-related claims to be resolved through individual arbitration.”
  • Then came Morris v. Ernst & Young, 13-16599 (9th Cir. Aug. 22, 2016), where the Ninth Circuit, in a 2-1 decision also moved into the “no class action waivers” camp.
  • As September dawned the Second Circuit in Patterson v. Raymours Furniture Co., 15-2820 (2d Cir. Sept. 2, 2016), reaffirmed that it was in the “enforce the PDAA” column. The Court here stated that it must follow the precedent it established in Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013), but noted that it might have joined the Seventh and Ninth Circuits if it were not bound by Sutherland.

Now comes word that Epic Systems, E&Y, and the NLRB (in Murphy Oil) are seeking SCOTUS review. Epic Systems on September 2nd petitioned the Supreme Court for certiorari. Less than a week later, E&Y followed suit with its own petition, and on September 9th the National Labor Relations Board sought certiorari in Murphy Oil. The issues in each petition are similarly framed. The language in the Murphy Oil petition is a good example:

Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees’ right under the National Labor Relations Act to engage in ‘concerted activities’ in pursuit of their ‘mutual aid or protection,’ 29 U.S.C. 157, and are therefore unenforceable under the saving clause of the Federal Arbitration Act, 9 U.S.C. 2.

 

My Updated Prediction

I predict SCOTUS will grant certiorari in at least one of the three cases, most likely Murphy Oil because it involves NLRB as a party. This is an important issue and there is an evident, major split in the Circuits. My view is that these sections of the NLRA aim to protect concerted activities like organizing union representation, not participating in class actions, and that Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), would require the NLRA to expressly ban arbitration if that was the intent of Congress. As SCOTUS said in CompuCredit Corp. v. Greenwood, 565 U.S. 7 (2012): “Had Congress meant to prohibit these very common provisions in the [statute], it would have done so in a manner less obtuse than what respondents suggest.” Time will tell if I have to again eat this prediction.

——————————–

*George H. Friedman, an ADR consultant and Chairman of the Board of Directors of Arbitration Resolution Services, Inc., retired in 2013 as FINRA’s Executive Vice President and Director of Arbitration, a position he held from 1998. In his extensive career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He is an Adjunct Professor of Law at Fordham Law School. Mr. Friedman serves on the Board of Editors and is a Contributing Legal Editor of the Securities Arbitration Commentator.  He is also a member of the AAA’s national roster of arbitrators.  He holds a B.A. from Queens College, a J.D. from Rutgers Law School, and is a Certified Regulatory and Compliance Professional.




That’s Just So Uber Irritating!

That’s Just So Uber Irritating!online_adr

By George H. Friedman*

Several years ago I attended a speakers’ boot camp. The instructor had a habit of reacting to behavior that bothered him by exclaiming, “That’s just so irritating!” I’ve adopted that expression, which was easy to do since I’m so easily irritated.[1] With that in mind, let me take to the soapbox about an irritating trend: the use of brick-and-mortar, paper-based, in-person arbitration by web-based, online businesses. Think about it: a company’s business is built on the web, lives on the web, thrives on the web, but when it comes to arbitration, brick-and-mortar is the order of the day. Mind you, my irritation has nothing to do with the fact that I chair Arbitration Resolution Services, Inc., an online ADR company. I’m irritated as a matter of principle.

It’s Uber’s Fault

What set me off most recently was Uber. While the mandatory predispute arbitration agreement (“PDAA”) in its contracts with drivers has garnered most of the attention lately, the PDAA in the passenger Terms of Service (“TOS”) was in the news lately. When users sign up online for Uber, they must accept the TOS which, among other things, contains a PDAA and class action waiver. In Meyer v. Kalanick and Uber Technologies, Inc., No. 15 Civ. 9796 (S.D.N.Y. July 29, 2016), Judge Jed Rakoff refused to enforce the PDAA because it did not give clear notice. What got my attention about the arbitration agreement was not that arbitration was required,[2] but how it was to take place. The PDAA called for arbitration at the American Arbitration Association under its regular Commercial Arbitration Rules. The clause even refers the reader to a printing out a PDF and submitting a “written Demand for Arbitration.” And the clause refers to a physical hearing. Huh? Uber exists in the ether. I just don’t get it.

Uber is Not Alone

Uber is not the only offender. Here are just a few that come to mind:

Amazon: The PDAA in its Conditions of Use calls for the AAA Consumer Rules and states: “To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501.” I’m sorry. To begin an arbitration involving the mother of all web-based companies I have to print my claim form and send it by snail-mail??  Just asking….

Instagram: Its Terms of Use call for AAA, or if it can’t or won’t administer the case, JAMS. It also has a small claims carve out, and lets consumers opt out of arbitration. But arbitration appears to be regular brick-and-mortar and … drumroll … to opt out a piece of paper must be sent by surface mail.

Kayak: The web-based travel search engine has Terms & Conditions calling for the AAA’s Commercial Arbitration Rules. There’s no mention on online arbitration, and to start a case, the consumer “must first send to the Company, by certified mail, a written Notice of Dispute (‘Notice’).” It later says the Notice to Kayak “must be sent to legal@kayak.com. Arbitration.”  Not sure what that means.

Netflix: The Terms of Use call for AAA, with a small claims carve out and a documents-only/telephonic option for the customer if a claim is less than $10,000. But customers must file paper claims:

If you elect to seek arbitration or file a small claim court action, you must first send to Netflix, by certified mail, a written Notice of your claim (‘Notice’). The Notice to Netflix must be addressed to: General Counsel, Netflix, Inc., 100 Winchester Circle, Los Gatos, CA 95032-1815 (‘Notice Address’).

If Netflix starts an arbitration, however, the Terms allow it to “send a written Notice to the email address used for your membership account.”

Priceline: The Terms and Conditions  call for AAA arbitration, with a small claims carve out. But again, paper to start the case!

If you decide to seek arbitration, you must first send, by certified mail, a written Notice of Dispute (“Notice”) addressed to: Legal Department, priceline.com LLC, 800 Connecticut Avenue, Norwalk, CT 06854 (“Notice Address”) … A form to initiate arbitration may be downloaded here.

Snapchat: I give Snapchat credit for thinking about online ADR. While its Terms of Service also call for regular AAA arbitration, paragraph 17(c) says that cases involving less than $10,000 may utilize “non-appearance arbitration” at the option of the Claimant. If so, “the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.” Bravo!

What’s the Problem?

Mind you, I love and respect the AAA. I spent over 20 years at this venerable arbitration institution, many of them as a senior officer. I’m on its National Roster of Arbitrators. I’ve conducted webinars for it. But while AAA performs many functions online, it is not a completely online ADR service. And the problem is not the AAA. As a true believer, I’m pretty sure I’d be ok if these Terms of Service called for online ADR even if it wasn’t handled by ARS. But the thought of paper notices and attending hearings in person for companies built on the web is just so… irritating.

I said several things in past blog posts on this topic that remain true today. Is there a better way to conduct arbitrations short of all participants dragging themselves to the same physical location and using paper? I suggest there is – the Arbitration Resolution Services way. The ARS model is cloud-based, with the entire arbitration or mediation process being conducted online via the web. As I previously blogged, online arbitration offers solutions to the problems that have vexed litigants for years:

  • Online ADR makes perfect sense where the entire relationship between the parties has and will be virtual. A completely web-based dispute resolution system helps all parties resolve these disputes in a faster, more efficient and less costly way than traditional arbitration or litigation.
  • The ARS rules governing consumer disputes assume that cases will be decided by electronic review of documents without the need for a hearing.
  • If a party wants to have a hearing, they can have a telephonic one or one conducted by Online arbitration hearings are scheduled for the convenience of the participants – they never have to leave their homes, offices or businesses. Hearings are conducted via phone and video conference.
  • Documents are uploaded and stored securely in the Cloud.

In short, parties, counsel, and arbitrators can conduct an arbitration from start to finish without getting on an airplane, leaving their home or business, or for that matter using a postage stamp.

Conclusion

I suggest businesses whose mode of operation is virtual reconsider the flawed logic of requiring brick-and-mortar arbitration, with in-person hearings and use of paper. Not doing so would be just so irritating.

_________________

*George H. Friedman, an ADR consultant and Chairman of the Board of Directors of Arbitration Resolution Services, Inc., retired in 2013 as FINRA’s Executive Vice President and Director of Arbitration, a position he held from 1998. In his extensive career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He is an Adjunct Professor of Law at Fordham Law School. Mr. Friedman serves on the Board of Editors of the Securities Arbitration Commentator.  He is also a member of the AAA’s national roster of arbitrators.  He holds a B.A. from Queens College, a J.D. from Rutgers Law School, and is a Certified Regulatory and Compliance Professional.

 [1] But very slow to truly anger. Ask my kids.

[2] This is not another screed about mandatory consumer arbitration. Been there, done that. See, for example, What’s a Regulator to do? Mandatory Consumer Arbitration, Dodd-Frank, and the Consumer Financial Protection Bureau in the American Bar Association Dispute Resolution Magazine




A New Congressional Attempt to Curb Arbitration Agreements: A More Focused Attack that’s also Doomed to Fail

By George H. Friedman*

[ARS Chairman of the Board Friedman posted this on his blog at the Securities Arbitration Commentator. Reposted with the permission of and thanks to SAC]

As we entered the new year, I blogged on Consumer Arbitration: Five Things to look for in 2016. Among my fearless predictions was “The Arbitration Fairness Act is still DOA; so is the Investor Choice Act.” A new, albeit more focused, candidate has emerged for my DOA list, to wit the Restoring Statutory Rights Act (“RSRA”), introduced February 4th by Senator Patrick Leahy (D-VT) and co-sponsored by Senator Al Franken (D-MN). Not only do I think there’s no chance the RSRA will be approved (I’m not alone in that view, the non-partisan GovTrack Website has calculated the RSRA’s chances of being passed as 1%), but if the bill defies the odds and is somehow enacted, I’m pretty sure it will be held unconstitutional. In other words, the RSRA is not only “Dead-on-Arrival,” but if it somehow is revived, it will be “Dead Man Walking.” Or maybe the “Walking Dead.” Read on for details….

Review of the proposed Arbitration Fairness Act and the Investor Choice Act

I’ll repeat here what I said in my new year predictions blog post. Suffice it to say these bills would amend the Federal Arbitration Act (“FAA”) to ban predispute arbitration agreements (“PDAAs”) outright in consumer, securities and employment contracts. Both the AFA and ICA were reintroduced last year and have gone nowhere. They will continue going nowhere this year. Or, as Chevy Chase used to say in that old SNL sketch, the AFA and ICA “are still dead.”

Why did I make this prediction? Quoting myself from a year ago, “several attempts were made over the years to amend the FAA to limit or ban use of mandatory arbitration in consumer contracts. These failed when the Republicans controlled the White House and Congress, and met a similar fate under Democratic control of these institutions as well. For example, in 2009 the Democrats regained the White House and control of both houses of Congress. The capital markets tanked, there were the Madoff and Stanford, and other scandals, and the economy crashed. But the Arbitration Fairness Act didn’t make it out of the House Financial Services Committee, which at the time was chaired by Barney Frank, an avowed critic of mandatory PDAAs in consumer contracts. If it didn’t happen then, it’s not going to happen in 2016 with a Republican-controlled Congress.”

The Restoring Statutory Rights Act

The RSRA, S.2506, would amend the FAA as to individuals, those bringing representative actions, and small businesses to: 1) ban PDAAs covering claims for damages – and injunctive relief – involving federal statutory rights and those derived from state Constitutions; 2) amend section 2 of the FAA to include under the “grounds as exist at law or in equity for the revocation of any contract” basis for resisting a PDAA a state or federal statute or court ruling “that prohibits the agreement to arbitrate on grounds that the agreement is unconscionable, invalid because there was no meeting of the minds, or otherwise unenforceable as a matter of contract law or public policy;” and 3) state that arbitrability issues are to be resolved by courts, not arbitrators. The RSRA thus far has picked up five more co-sponsors – all Democrats – and has been assigned to the Senate Judiciary Committee, which is chaired by Senator Chuck Grassley (R-IA). The Committee Website describes him as follows: “Now in his sixth term in the U.S. Senate, this farmer-lawmaker has developed a reputation for common-sense, fiscal responsibility, government accountability, judicious legislation and constituent services.”

What’s the problem with the RSRA?

A better question is, what are the problems with the RSRA?

Nice try, but it’s doomed to the same DOA status as the AFA and ICA: Simply put, this Congress will not vote the RSRA out of committee, let alone approve it. Here’s a telling clue: to date, not a single Republican has co-sponsored any of the three bills. To be fair, whereas the AFA and ICA take a pretty broad “no PDAAs” approach, the RSRA takes a more focused approach that tries to walk through a door opened previously by SCOTUS. To review, the Supreme Court says that, where a federal statute specifically and expressly bars arbitration, the FAA’s presumption of PDAA validity and enforcement will yield to that statute’s proscription of arbitration (see CompuCredit Corp. v Greenwood, 132 S.Ct. 665 (2012)). Congress has so spoken a few times. Section 922 of Dodd-Frank amends the Securities Exchange Act of 1934 to prohibit use of PDAAs in Sarbanes-Oxley whistleblower disputes. Section 748 amends the Commodity Exchange Act in the same way. Also, Dodd-Frank section 1414 bans outright PDAAs in residential mortgage contracts. The proposed RSRA tries to take this approach. Alas, methinks it won’t work (see “if it didn’t work then…” above).

The RSRA may be unconstitutional: The RSRA would be effective for “any dispute or claim” arising after the law is enacted. Why might this part of what I think is an ill-fated bill be unconstitutional? The RSRA would retroactively invalidate untold numbers of preexisting arbitration agreements, perhaps millions. As I wrote in my article published in the Securities Arbitration Commentator, The Arbitration Fairness Act of 2013: a Well-intended but Potentially Dangerous Overreaction to a Legitimate Concern, “a legally tenable claim might be made that this aspect of the AFA runs afoul of the Fifth Amendment’s Takings Clause, which states in pertinent part: No person shall … be deprived of life, liberty, or property, without due process of law. There are property rights associated with contracts. Predispute arbitration agreements under the FAA are contracts, which stand on their own according to the Supreme Court. Thus a statute such as the AFA that retroactively invalidated contracts such as PDAAs could be subject to challenge based on an impermissible governmental ‘taking’ absent a compelling governmental interest. While the Court in the past has allowed retroactive application of laws banning, for example, contracts containing racially restrictive covenants, I am not so sure banning PDAAs would be held in the same regard, even in the face of the AFA’s explicit language on retroactivity” (footnotes omitted).

The same Constitutional problems in my opinion are present with the Restoring Statutory Rights Act. I just don’t see the necessary “compelling governmental interest” here.

Is there any hope of PDAA relief for consumers?

The proponents of the AFA, ICA, and now the RSRA are in my humble opinion, tilting at windmills if they really think this Congress will amend the FAA to ban PDAAs. As I’ve blogged before, the most realistic route to prompt mandatory PDAA relief for consumers – and I do think they need relief –is the Consumer Financial Protection Bureau (“CFPB”).

Dodd-Frank contains language governing the use of predispute arbitration agreements in consumer financial and investor contracts.[1] Dodd-Frank created the CFPB and charged the new federal agency with studying the use of PDAAs in contracts for consumer financial products and services and addressing PDAAs “if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers…” For example, the CFPB can promulgate a rule that permits PDAA use, but bans class action waivers in arbitration agreements. Securities arbitration was left to the SEC, which has yet to act.

In March 2015, the CFPB issued its Final Report to Congress, finding that mandatory PDAAs are widely used in contracts for financial goods and services, and that they can be harmful to consumers. At an October 7 “field hearing” on arbitration in Denver, the CFPB announced that it will be proposing rulemaking that will: 1) ban class action waivers in arbitration clauses; and 2) require regulated financial institutions to file customer claims and Awards with the CFPB, which it may choose to publish. This will permit the Bureau to monitor these cases and, perhaps, decide down the road if further rulemaking to ban pre-dispute arbitration agreements is warranted. As I said earlier this year, I’m certain that the Bureau in 2016 will, after collecting and analyzing consumer arbitration case filing and Awards data, start the process of banning mandatory PDAAs, and it will certainly follow through on its announced intention to ban class action waivers. And there’s already a federal law expressly authorizing them to do so, as SCOTUS requires.

Conclusion

Sorry to be the bearer of bad tidings to the anti-mandatory arbitration folks, but that’s how I see it. You may of course disagree with me, and we can compare notes later, but in the meantime it’s better we focus on what can actually be accomplished.

_____

*George H. Friedman, an ADR consultant and Chairman of the Board of Directors of Arbitration Resolution Services, Inc., retired in 2013 as FINRA’s Executive Vice President and Director of Arbitration, a position he held from 1998. In his extensive career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He is an Adjunct Professor of Law at Fordham Law School. Mr. Friedman serves on the Board of Editors of the Securities Arbitration Commentator. He is also a member of the AAA’s national roster of arbitrators. He holds a B.A. from Queens College, a J.D. from Rutgers Law School, and is a Certified Regulatory and Compliance Professional.

[1] For an in-depth analysis on what CFPB can and should do, see Friedman, George, What’s a Regulator to do? Mandatory Consumer Arbitration, Dodd-Frank, and the Consumer Financial Protection Bureau, 20:4 ABA Dispute Resolution Magazine 4 (Summer 2014), available at http://www.americanbar.org/publications/dispute_resolution_magazine/2014/summer/what-s-a-regulator-to-do–mandatory-consumer-arbitration–dodd-f.html.