Friday, May 1, 2015

Arbitration Fairness Act of 2015

There is a new bill in Congress to amend Title 9 of the United States Code with respect to arbitration over which increasing debate on fairness as a pre-dispute agreement has intensified. The Arbitration Fairness Act of 2015 was introduced by Minnesota Senator Al Franken and Georgia Representative Hank Johnson to eliminate mandatory arbitration clauses in employment, consumer, civil rights and antitrust cases. Companies provide almost all consumer financial products and services under written contracts with such clauses. Arbitration agreements in those contracts often require that parties resolve any subsequent disputes through privately-appointed arbitrators, rather than through the court system. The use of arbitration clauses has increased with recent U.S. Supreme Court decisions supporting corporate enforcement efforts of those agreements. A Consumer Financial Protection Bureau (CFPB) report found that 75% of consumers surveyed did not know if they were subject to an arbitration clause in their credit card contract. Among consumers whose contract included an arbitration clause, fewer than ten percent recognized that they could not sue their credit card issuer in court. It is claimed so-called "forced arbitration" does not provide important procedural guarantees of fairness and due process that are the hallmarks of courts of law. According to Senator Franken’s office, the Arbitration Fairness Act would restore the intent of the original Federal Arbitration Act (FAA) passed by Congress in 1925. When the FAA was passed, it was intended to target commercial arbitration agreements between two companies of generally comparable bargaining power. Over the years, court decisions broadened the reach of the law to include consumer and employment disputes. Under the newly introduced Arbitration Fairness Act of 2015, agreements to arbitration of employment, consumer, civil rights and antitrust disputes could only be made after the dispute has arisen. The Act does not prohibit companies and consumers from going to arbitration to settle a dispute once the dispute has actually taken place. The Act reportedly seeks to ensure transparency in civil litigation by protecting the integrity of Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, among others. The Act would continue to allow pre-dispute mandatory arbitration to continue in business-to-business agreements, and does not apply to collective bargaining agreements. The National Consumer Law Center and the National Association of Consumer Advocates support the new measure. Both proponents and critics of the new act take hard-line stances on the perceived ills or benefits of arbitration, rather than trying to address some criticisms while preserving its benefits. Under the Bill, the applicability of an agreement to arbitrate and the validity and enforceability of an agreement is to be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement. See proposed legislation here-- and CFPB report to Congress here--