Here is my brief summary of what is out there so far. The Federal Deposit Insurance Corporation:
What's a lawyer to do when boilerplate arbitration clauses bar the courthouse door? According to an article in a recent issue of The Brief, published by the Torts and Insurance Practice Section of the American Bar Association, "in a further effort to limit litigation exposure in general, and exposure to class actions in particular," Alabama insurance companies are scrambling to use the clauses.
The agreement arrives in the box with the computer. Arbitration clauses can put unwitting consumers at the mercy of a biased decision maker who is not bound to follow the law and who is often in an inconvenient place.
A purchase of XYZ electronic equipment can mean submitting disputes to XYZ's affiliated arbitrator in Jefferson, Wyoming—surely a tactic meant to discourage consumers from filing grievances. Moreover, consumers may forfeit discovery, have limited remedies, and pay handsomely for the privilege of engaging this forum.
They exact waivers of fundamental constitutional rights without meeting the generally required standard for informed consent—that the waivers be knowing, intelligent, and voluntary. ATLA and other groups are working in Congress to that end.
In the meantime, consumers will turn to lawyers to wrest claims from arbitrators and give them back to judges and juries. There are ways for lawyers to do this, but they'll need a sound legal theory and a factual record to support it. Voluntary arbitration waives rights only after a dispute has occurred and serves as a substitute for settlement.
Mandatory arbitration waives consumers' rights before a dispute has occurred and serves as a substitute for trial.
The Federal Arbitration Act was intended to require federal courts to enforce arbitration agreements between large commercial entities; it was not intended to apply to state courts at all.
According to the Supreme Court, it prohibits "threshold limitations placed specifically and solely on arbitration provisions" and says that "courts may not, however, invalidate arbitration provisions under state laws applicable only to arbitration provisions.
It must not focus on arbitration as evil or even unfair. Let us illustrate by changing the facts in Casarotto. Instead of a court reviewing a statute that requires contracts containing an arbitration clause to give prominent notice of the clause, let's say a court is considering a statute saying that any contract waiving any constitutional right is void unless the waiver is shown to be knowing and intelligent.
When confronted with a boilerplate arbitration agreement, the trial court finds that the agreement waives the constitutional right to jury trial. Therefore, it is void under the statute unless there is a showing that the waiver was knowing and intelligent. Finding no such waiver, the court finds that the arbitration agreement is unenforceable.
The defendant then argues that the statute is preempted by the FAA. But this time, the defendant loses because the state law applies to all contract provisions that waive constitutional rights, not just mandatory arbitration provisions. Social impact There is plenty to study about mandatory arbitration, but available social science is distressingly thin.
Key points of interest to litigators are that claimants appear to suffer significant economic loss when their fundamental constitutional right to jury trial is waived and that claimed social benefits of mandatory arbitration are illusory.This publication discusses common business expenses and explains what is and is not deductible.
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