Law Commons^™

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

Realigning Federal Statutes: Contradictions Between The Federal Arbitration Act And The National Labor Relations Act, Denise Han

Brigham Young University Prelaw Review

Christopher Steele and Brendan Leveron were employees at a private

maintenance company named Pinnacle. Both Steele and Leveron

reported that Pinnacle allegedly forced them to work overtime without

just compensation—an allegation that, if proven valid, would

violate the Fair Labor Standards Act and California state law. They

also claimed that Pinnacle was guilty of unfair business practices,

retaliation and whistleblowing violations, and a failure to account.

Soon after Steele and Leveron filed these allegations, they discovered

that their predicament was not unique across the firm. In 2012,

they decided to represent their fellow employees in a class-action suit

which so …

The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin

Chicago-Kent Law Review

Mandatory arbitration procedures have expanded to become a common feature of American employment relations. This article presents the results of a new original survey examining the extent of mandatory arbitration, where it is most commonly used, and which employees it is most likely to affect. Overall, 53.9 percent of private sector business establishments, representing 56.2 percent of nonunion employees, have mandatory arbitration procedures. Larger employers are more likely to have adopted mandatory arbitration, as are workplaces with lower paid employees. Mandatory arbitration is particularly common in California, North Carolina, and Texas, but is widespread nationwide. Class action waivers are included …

Mandatory Arbitration Of Sexual Assaults In Maritime Law, Andrew Bratslavsky

St. Thomas Law Review

This Comment discusses the emergence of mandatory arbitration clauses in seafarer employment contracts, and how these clauses impact cases of sexual assault. Part II will trace the origin of arbitration, the history of seafarer rights and remedies, a Supreme Court decision that opened the door to arbitration of sexual assaults, and its progeny in the Eleventh Circuit. Finally, Parts III and IV will suggest solutions to address the issue presented in this Comment. With that in mind, this Comment does not aim to disparage or discredit arbitration at large. Arbitration, when mutually agreed to, can be an effective means of …

Sign Or Else: Employment Arbitration In The Wake Of An Epic Decision, Brendan Williams

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Nancy Welsh

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Evolution Of The Arbitration Forum As A Response To Mandatory Arbitration, Teresa J. Verges

Articles

No abstract provided.

The Uberization Of Arbitration Clauses, Jill I. Gross

Arbitration Law Review

No abstract provided.

Arbitration In Wills And Trusts: From George Washington To An Uncertain Present, Edward F. Sherman

Arbitration Law Review

No abstract provided.

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Book Chapters

This chapter focuses on the use of mandatory pre-dispute arbitration clauses in a subset of consumer contracts – those involving consumer finance and investor products and services. Arbitration clauses are pervasive in financial contracts – for credit cards, bank accounts, auto loans, broker-dealer services, and many others. In the wake of the recent financial crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). Dodd-Frank authorises the new Consumer Financial Protection Bureau (CFPB) and the Securities and Exchange Commission (SEC) to prohibit or condition the use of arbitration clauses in consumer finance and investment contracts, …

The Three Phases Of The Supreme Court’S Arbitration Jurisprudence: Empowering The Already-Empowered, Martin H. Malin

Nevada Law Journal

No abstract provided.

Comparing Mandatory Arbitration And Litigation: Access, Process, And Outcomes, Alexander Colvin, Mark D. Gough

Alexander Colvin

[Excerpt] What do we know about mandatory arbitration and its impact? Some existing studies have examined samples of employment arbitration cases, usually obtained from the American Arbitration Association (AAA), which is currently the largest arbitration service provider in the employment area. Although some early studies found relatively high employee win rates and damage awards in arbitration, comparable to those in litigation, these results were mainly based on arbitration under individually negotiated agreements or in the securities industry and involved relatively highly paid individuals. More recent studies using larger samples of cases based on mandatory arbitration agreements find much lower employee …

Mandatory Arbitration In Consumer Finance And Investor Contracts, Michael S. Barr

Articles

Mandatory pre-dispute arbitration clauses are pervasive in consumer financial and investor contracts—for credit cards, bank accounts, auto loans, broker-dealer services, and many others. These clauses often ill serve households. Consumers are typically presented with contracts on a “take it or leave it” basis, with no ability to negotiate over terms. Arbitration provisions are often not clearly disclosed, and in any event are not salient for consumers, who do not focus on the importance of the provision in the event that a dispute over the contract later arises, and who may misforecast the likelihood of being in such a dispute. The …

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Michael Heise

No abstract provided.

Justice Scalia's Hat Trick And The Supreme Court's Flawed Understanding Of Twenty-First Century Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

In this article, I report on the results of my close examination of more than two dozen opinions the Court has handed down interpreting the FAA--arising primarily from commercial, consumer, employment, or securities disputes--since the beginning of the twenty-first century only fifteen years ago.19 I focus on cases in which the Court was asked to decide a question of arbitrability--whether a claim is arbitrable or whether an agreement to arbitrate is enforceable under FAA section 2. I have concluded that these decisions are built on a narrative of an arbitration process that no longer exists, although it may have existed …

Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight

Scholarly Works

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 minuscule 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 (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …

Enforceability Of Mandatory Arbitration Clauses For Shareholder-Corporation Disputes, Garry D. Hartlieb

Michigan Business & Entrepreneurial Law Review

Investor litigation is an increasingly vexatious field of law. Nearly every time a significant change of control or corporate ownership occurs, plaintiffs’ attorneys file standardized complaints to set in motion class action suits. Ultimately, the settlements shareholders receive fail to achieve the practical effects that parties on both sides desire. Shareholders may receive pennies on the dollar of what they allege was lost by corporate wrongdoing, and, in some cases, shareholders may not receive monetary recovery as the settlement requires only that the corporation to make changes to its governing documents. These suits distract directors and management from the core …

Unaffordable Justice: The High Cost Of Mandatory Employment Arbitration For The Average Worker, Lisa A. Nagele-Piazza

University of Miami Business Law Review

Although the use of arbitration provisions in collective bargaining agreements and executive employment contracts serve a beneficial purpose for workers and employers alike, the growing use of mandatory, pre-dispute arbitration agreements in non-unionized employment settings stands as an obstacle for employees to vindicate their statutorily prescribed civil rights. In particular, by forcing workers to share in the unique costs of arbitration, employees may be deterred from bringing otherwise meritorious claims. Given the federal policy favoring arbitration, and in the absence of legislation banning mandatory employment arbitration agreements, it is essential for arbitration service providers and drafters of arbitration clauses to …

Opening The Floodgates Of Small Customer Claims In Finra Arbitration: Finra V. Charles Schwab & Co., Inc., Teresa J. Verges

Articles

No abstract provided.

Employment Arbitration: Empirical Findings And Research Needs, Alexander Colvin

Alexander Colvin

[Excerpt] There is vociferous opposition to employers forcing pre-dispute arbitration agreements on employees. Critics argue that employees are not voluntary participants in the process, which they say unfairly favors employers. Advocates of mandatory arbitration dispute these charges and argue that arbitration offers employees and employers significant advantages over litigation. For example, they argue, among other things, that that litigation is not as accessible as arbitration because lawyers will not take low value employment cases on a contingency basis.

Critics of mandatory employment arbitration have moved the debate into the legislative arena. Bills have been introduced in state legislatures and in …

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Faculty Scholarship

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Institutional Pressures, Human Resource Strategies, And The Rise Of Nonunion Dispute Resolution Procedures, Alexander Colvin

Alexander Colvin

The author investigates factors influencing the adoption of dispute resolution procedures in the nonunion workplace. Various explanations are tested using data from a 1998 survey of dispute resolution procedures in the telecommunications industry. The results suggest that both institutional pressures and human resource strategies are factors driving the adoption of nonunion procedures. Among institutional factors, rising individual employment rights litigation and expanded court deferral to nonunion arbitration have led to increased adoption of mandatory arbitration procedures in the nonunion workplace. At the same time, an older institutional factor—union substitution by nonunion employers aimed at avoiding union organizing—continues to inspire the …

From Supreme Court To Shopfloor: Mandatory Arbitration And The Reconfiguration Of Workplace Dispute Resolution, Alexander Colvin

Alexander Colvin

[Excerpt] In a series of court battles during the 1990s, employers successfully defended the use of mandatory employment arbitration against challenges that the procedures inherently undermined the statutory rights of employees. Efforts to introduce legislation in Congress aimed at reversing the Gilmer decision were unsuccessful. In 2001, the Supreme Court reaffirmed its acceptance of mandatory arbitration to resolve employment disputes in Circuit City Stores, Inc. v. Adams. However, some courts have been willing to strike down arbitration procedures that contain particularly egregious violations of due process. For example, courts have refused to enforce arbitration agreements that restrict employee damage awards, …

Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook

University of Michigan Journal of Law Reform Caveat

This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

Mandatory Binding Arbitration Clauses Prevent Consumers From Presenting Procedurally Difficult Claims, Jean R. Sternlight

Scholarly Works

The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated altogether as a result of companies’ use of mandatory arbitration clauses. The United States Supreme Court’s recent decision in AT&T Mobility v. Concepcion brings …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

The Circle Of Assent: How "Agreement" Can Save Mandatory Arbitration In Long-Term Care Contracts, Lauren Gaffney

Vanderbilt Law Review

On September 28, 1997, a resident at the Comanche Trail Nursing Center physically attacked his eighty-one-year-old roommate, Tranquilino Mendoza. As a result of the attack, Mr. Mendoza suffered a concussion and brain damage. His daughter claimed that her father was never the same after the attack and filed a lawsuit against the long-term care facility alleging negligence. In 2006, a jury awarded Mr. Mendoza $160 million.

Similarly, on April 26, 2003, a resident of the Heritage House Nursing and Rehabilitation Center allegedly attacked Carolyn Mason, another resident at the same facility. Mrs. Mason suffered a broken hip.6 Like Mr. Mendoza, …

Determining If Mandatory Arbitration Is “Fair”: Asymmetrically Held Information And The Role Of Mandatory Arbitration In Modulating Uninsurable Contract Risks, Paul B. Marrow

NYLS Law Review

No abstract provided.