Saturday, September 30, 2017

Banks Sue to Stop CFPB Arb Rule

Over a dozen U.S. banks and business groups sued the Consumer Financial Protection Bureau (CFPB) yesterday in an effort to block a new arbitration rule which goes into effect March 19, 2018 allowing consumer class actions against credit card companies and other financial institutions. The rule requires sending a notice or to amend an arbitration agreement if entered into on or after March 19th and offers variable examples of language to use for agreements that apply to multiple products or services, if not all are covered by the rule. The lawsuit, filed in the Texas, calls the structure of the CFPB, a watchdog agency established in response to the 2008 financial crisis, unconstitutional. Filed on behalf of the U.S. Chamber of Commerce, American Bankers Association and other groups, the suit argues the rule to be imposed on U.S. businesses will not help consumers and the change would actually hurt consumers. According to the lawsuit, "Arbitration gives consumers the ability to bring claims that they could not realistically assert in court, including the small and individualized claims that they care the most about. In contrast, class-action litigation is significantly less effective than arbitration in addressing consumer claims." The CFPB has defended the rule as a necessary protection for consumers. Reportedly, the CFPB is also being criticized by another regulator, the Office of Comptroller of the Currency (OCC). The CFPB arbitration rule could cause the interest rates on credit cards to rise significantly — as much as 25%, according to the OCC, which oversees the banking sector. See full story here-- and

Saturday, September 16, 2017

Seeking to Compel or Stay Arbitration?

I'm often asked about requesting courts to compel arbitration when the opposing party commences a lawsuit or otherwise expresses the intention to avoid arbitration of a dispute even though the dispute is subject to a valid arbitration agreement. If there is no lawsuit pending, a party may ask a court to compel the other party to arbitrate the dispute under the consented terms of a contract or arbitration clause in an agreement. If a lawsuit has been filed, the party seeking to compel arbitration may make the request by motion in the pending litigation. In that case, the practitioner should consider applying to stay the litigation pending arbitration, compel arbitration, or both. When a party objects, citing arbitration language in a written agreement, the Revised Florida Arbitration Code, F.S. §682.01 et seq., provides that any party may apply by motion for an order directing the parties to a lawsuit to comply with a governing arbitration clause. A party seeking to compel arbitration has the burden of establishing an agreement to arbitrate exists. The statutory process is as follows: F.S. § 682.015 Petition for judicial relief.— (1) Except as otherwise provided in s. 682.20, a petition for judicial relief under this chapter must be made to the court and heard in the manner provided by law or rule of court for making and hearing motions. (2) Unless a civil action involving the agreement to arbitrate is pending, notice of an initial petition to the court under this chapter must be served in the manner provided by law for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by law or rule of court for serving motions in pending cases. See

Thursday, September 7, 2017

Hurricane Irma Will Bring Windstorm Claims

In the wake of this season's monster storm, Hurricane Irma, we are sure to see some claims from wind damage and resulting lawsuits which will need to be mediated. Florida law requires insurers of residential property to include hurricane windstorm coverage in such insurance policies. See §627.0629, Fla. Stat. Residential policies can be both personal lines (homeowner's coverage, mobile home, dwelling, tenant's, condominium unit owner's, cooperative unit owner's, and the like) and commercial lines (coverage provided by a condo association, coop association, apartment building, and similar policies, including those covering the common elements of a homeowners' association). See §627.4025, Fla. Stat. “Hurricane coverage” is coverage for loss or damage caused by windstorm during a hurricane. It includes ensuing damage to the interior of a building, or to property inside a building, caused by rain, sleet, hail, sand, or dust if the direct force of the windstorm first damages the building, causing an opening through which rain, sleet, hail, sand, or dust enters and causes damage. “Windstorm” means wind, wind gusts, hail, rain, tornadoes, or cyclones caused by or resulting from a hurricane that results in direct physical loss or damage to property. “Hurricane” means a storm system that has been declared to be a hurricane by the National Weather Service's National Hurricane Center. A hurricane includes the time period (1) beginning when the National Hurricane Center issues a hurricane watch or warning for any part of Florida, (2) continuing for the time period during which the hurricane conditions exist anywhere in Florida, and (3) ending 72 hours after the National Hurricane Center terminates the last hurricane watch or warning issued for any part of Florida. Please keep this in mind once the storm passes and be safe out there! For more information, see complete statutory language here-- and