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May 2015
5/07

Business principles 101: Settle deals with arbitration, not in court

After the court trial I asked my attorney what I could do to prevent this from ever happening again. He said, “Simple; add a clause to your sales contract that requires the parties to settle disputes by binding arbitration. read

 
April 2015
4/27

Forced Arbitration Leaving Consumers High and Dry

Data confirm that forced arbitration gives consumers little recourse or relief. With the completion of its study of forced arbitration, the Consumer Financial Protection Bureau now has the authority to prohibit the practice in the financial markets it oversees. The bureau has made a compelling case for doing so. Forced arbitration clauses, widely found in take-it-or-leave it contracts for checking accounts, prepaid cards, credit cards and other financial services, require consumers to give up the right to go to court in the event of a dispute. Instead, you are forced to bring your case to a private arbitration firm that has been chosen by the company – your opponent in the dispute. The CFPB’s data show how unfair this increasingly common corporate practice is, and how damaging it can be to the financial marketplace. read

 
4/13

Keeping the Confidential Arbitration Proceeding Confidential

Courts repeatedly have held that an arbitration confidentiality agreement covering judicial documents is insufficient to overcome the First Amendment presumption of access to the courts and the common-law right to public access to judicial proceedings and records. Even in the face of a confidentiality agreement, courts have refused to seal petitions and supporting documents seeking to confirm an arbitration award where the party seeking confidentiality made broad allegations of harm unsubstantiated by a particularized showing of the injury and harm public disclosure of the information would cause. read

 
4/05
What It Takes to Opt Out of an Arbitration Clause

Not all companies with arbitration clauses or no-class-action provisions require employees to sign on. While companies such as Uber Technologies Inc. require drivers to agree to such contracts before joining its platform, others give employees a chance to opt out—although it can take some doing. read

 
March 2015
3/30

CFPB Study: Arbitration Agreements Limit Relief For Consumers

On March 10, 2015, the Consumer Financial Protection Bureau ("CFPB") released a report which found that arbitration clauses restrict a consumer's relief against financial service providers, such as credit card companies and banks. read

 
3/02

Rethinking the merits of arbitration

Will the impending increase in court fees lead to more arbitration as litigation becomes less viable? read

 
February 2015
2/27
Do We Need a New York Convention for Mediation/Conciliation?

The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) is viewed by many as one of the most (if not the most) successful commercial treaties to which the United States has become a party. To date, 154 countries have signed the New York Convention. With this backdrop in mind, in July 2014 the United States submitted a proposal to the United Nations Commission on International Trade Law (UNCITRAL) Working Group II that it develop a convention on the enforcement of conciliated settlement agreements for international commercial disputes. In February 2015, UNCITRAL Working Group II held meetings in New York, where it considered this proposal with the goal of reporting to UNCITRAL on whether such a project was feasible. read

 
2/23

Who Decides Res Judicata and Collateral Estoppel in Arbitration?

Litigating parties recognize that both res judicata (claim preclusion) and collateral estoppel (issue preclusion) apply not only to court decisions but to those of an arbitrator as well. But what if following the judicial confirmation of an arbitration award, the losing party brings a second arbitration claim? The party successful in the first arbitration believes, however, that the new proceeding raises claims or issues that were resolved in the first arbitration. Who decides whether claim or issue preclusion should apply—the court that confirmed the initial award or the arbitrator appointed for the second arbitration? read

 
January 2015
1/13
Alternative Dispute Resolution: what are the alternatives?

Parties involved in modern litigation are increasingly encouraged to settle their disputes before the matter reaches trial. There is a range of options to try and help parties avoid Court, which are known collectively as "Alternative Dispute Resolution" or "ADR". The goal of ADR is to achieve a mutually satisfactory settlement that will save both parties the time and costs of litigation. The private and flexible nature of many of the options can also encourage the parties to speak more freely. This can assist in salvaging business relationships and reputations, making such methods far more appealing from a commercial perspective. ADR is a wide topic and the different options can be confusing. We therefore set out below an introduction to the forms of ADR that prove most useful for property disputes. read

 
1/12

How To Win A China Arbitration

Chinese companies are increasingly requiring their commercial contracts with American companies provide for disputes to be resolved by arbitration in China. This is especially true of China’s State Owned Entities (SOEs). Though most American companies believe that their nationality precludes them from getting a fair shake in such arbitrations, my own law firm’s experiences (mostly before CIETAC) have not borne this out. Our lawyers have generally felt that their arbitrators in China arbitrations have sought to be fair to both sides, without regard for the nationality of the parties. Here are some takeaways from the arbitration actions we have handled in China, with a focus on what it takes to prevail.  read

 
1/06

Be careful what you ask for in international arbitration

Over the past 20 years, as the pace of economic globalization has accelerated, U.S. corporate counsel increasingly have been required to ponder the optimal dispute resolution mechanism to insert into their cross-border contracts, including whether to choose court litigation or international arbitration. The attitudes of corporate counsel toward international arbitration run the gamut. Energy companies, long accustomed to large investments in developing countries, are well familiar with international arbitration. Old line manufacturers who source materials from abroad or who sell products abroad, are also accustomed to international arbitration. By contrast, many technology companies, protective of their IP assets, prefer the U.S. courts to adjudicate intellectual property and complex commercial disputes and are wary of a process from which there is no right of appeal from a private arbitrator. As with all debates, the litigation versus arbitration decision is not black or white. read

 
December 2014
12/10
Tech Sector Coming Around to IP Arbitration

Major technology companies, anxious to protect their intellectual property, have generally chosen litigation over arbitration—even in cross-border disputes. But that may be changing.
Increasingly, computer, software and other tech companies are exploring arbitration as an alternative to litigation, especially in international disputes, lawyers say. “Tech companies are starting to realize they don’t have a choice,” said Cedric Chao, co-head of DLA Piper’s international arbitration practice. “They’re still wary of arbitration, but they’re coming around." read

 
November 2014
11/25
Arbitrate or Mediate But Don't Litigate Entertainment Disputes

Gone are the days when media moguls and professional athletes would voluntarily hang around the courthouse to litigate contract disputes. Today the entertainment and sports industry increasingly use arbitration and mediation to resolve conflicts. Former Chief Justice Warren E. Burger said to the American Bar Association, "Our litigation system is too costly, too painful, too destructive, too inefficient for a civilized people." There is no question arbitration, and especially mediation, help salvage relationships in the entertainment and sports industry that litigation would otherwise ossify. Although arbitration and mediation can take many different forms, in general, the arbitrator renders a decision at the end of an arbitration hearing, and that decision is final and binding. Mediation, on the other hand, is a process wherein the parties meet with a mutually selected impartial person who assists them in the negotiation of their differences. read

 
October 2014
10/30

Arbitrators Finally 'Get' E-discovery

For years, many proponents of arbitration have considered the cost and delays of discovery of electronically stored information (ESI) inconsistent with core principles of arbitration such as efficiency and cost-effectiveness. That view led many arbitral bodies and arbitrators to step only cautiously and slowly into the e-discovery realm. They were unsure of how to implement it until new rules were issued.  Domestic arbitral bodies, beset with criticisms of arbitration generally, have made and continue to make changes with regard to ESI. Both JAMS and the American Arbitration Association (AAA) now have protocols for e-discovery, as do several of the international arbitration providers. read

 
10/27

Fighting Your Broker in Arbitration? Finra 'Judges' Give Some Tips

You may think you have an open-and-shut case against a stockbroker who's a 10 on the sleaze scale. But the arbitrators who hear cases against Wall Street's rogues say even investors with good cases can lose when they're not prepared for their hearings. A panel of four arbitrators spoke Thursday at the annual meeting of the Public Investors Arbitration Bar Association, a group of lawyers who represent investors who've been fleeced. They shared ideas about what works and what doesn't when investors look to be made whole after investment losses. Every investor has to agree to use arbitration run by the Financial Industry Regulatory Authority, rather than court, before he or she can open a brokerage account, so it's worth knowing what arbitrators want, and what turns them off. read

 
10/13

Getting a fair shake in arbitration

The Public Investors Arbitration Bar Association has made one valid point in its criticism of the pool of arbitrators used by Finra to settle suits by investors against brokers, but it also makes a number of unjustified assumptions about members of the pool. In a study it released last week, PIABA implied that investors cannot get a fair shake from the Financial Industry Regulatory Authority Inc.'s arbitrators because 80% of the roster is male, the average age is 67 and 73% have advanced degrees. It noted that “PIABA's research shows Finra's arbitrator pool consists primarily of elderly men who have socioeconomic status that puts them out of touch with the average investor.” It also reported that the “win rate” for claimants dropped from about 60% in the early 1990s to 42% in 2013. read

 
10/07

The Promise and Perils of “Med-Arb”

When disputing parties tire of mediation (because it is too “weak”) or fear arbitration (because it is too “controlling”), they seek an Alternative Dispute Resolution solution that is “just right.” Recently, I’ve heard a number of highly talented negotiators, and one famous law school, endorse med-arb as the best of all ADR worlds. The advantages, however, come with caveats. read

 
10/06

SEC to take deeper look at Wall St. arbitration reform plan

The U.S. Securities and Exchange Commission is taking the unusual step of extending its review of a plan to restrict industry veterans from serving as arbitrators in many legal disputes between investors and brokerages, citing questions about whether the proposal complies with securities laws. The plan to revamp how arbitrators are selected was filed by the Financial Industry Regulatory Authority (FINRA) in June and must be approved by the SEC before it becomes a final rule. The plan "raises questions" about whether it is in line with laws that require FINRA rules to protect investors, among other things, the SEC said in a notice published on Wednesday seeking additional input from the public. read

 
10/02

EnergyBuzz: Arbitration for Energy Disputes

It's almost 2015; do you know where your arbitration clause is? In the past year, the International Centre for Dispute Resolution, the American Arbitration Association and other arbitration forums substantially revised their rules to streamline the process, limit discovery, expressly allowing for dispositive motions and make arbitration more efficient and economical. Although arbitration itself is not new to the energy sector, the proliferation of shale plays due to horizontal drilling and hydraulic fracing, coupled with an increase in political and economic volatility, has spawned a surge in complex energy disputes that often cross jurisdictional boundaries. read

 
September 2014
9/30

Reimagining Arbitration

The rapid growth of commercial arbitration has not been without drawbacks. As counsel have become more sophisticated in dispute process design, arbitrations now often incorporate many elements of a court trial. The inevitable consequence of these changes has been increased expense and delay. To preserve the benefits of arbitration, it is necessary to address this issue from several perspectives, starting with the arbitration clause. A thoughtful process usually should include a negotiation or mediation step, reasonable limits on the scope of discovery, overall time limits on the arbitration, and the designation of one rather than three arbitrators whenever possible. read

 
9/24

Arbitration Clauses Must Be Explicit About Waiver of Suit

An arbitration clause in a consumer contract is not enforceable unless it clearly indicates that the plaintiff is giving up the right to go to court, a unanimous New Jersey Supreme Court ruled Sept. 23. Arbitration is favored under both federal and state law but that favored status “does not mean that every arbitration clause, however phrased, will be enforceable,” Justice Barry Albin wrote in Atalese v. U.S. Legal Services Group. “By its very nature, arbitration involves a waiver of a party’s right to have her claims and defenses litigated in court,” Albin acknowledged. “But an average member of the public may not know—without some explanatory comment—that arbitration is a substitute for the right to have one’s claim adjudicated in a court of law.” read

 
9/23

Law enforcement finds arbitration imperfect

The state’s grievance arbitration system was designed to protect public employees from discipline without just cause and violations of their employment contracts. Yet some arbitrator decisions reinstating police officers terminated for criminal activity or alleged criminal activity have called into question whether the arbitration system serves the interest of public trust in law enforcement. Some law enforcement leaders say they can’t depend on arbitrators to uphold discipline of peace officers who violate the law. read

 
9/09

Gazprom Seeks Mediation of Moncrief's $1.36 Billion Suit

Russia’s biggest company Gazpron asked a U.S. judge to force Moncrief Oil International Inc. to arbitrate a $1.36 billion trade-secrets lawsuit and dismiss the case.  Moncrief’s claims are linked to negotiations with Gazprom over a stake in a Russian oil field and are subject to an arbitration clause of the companies’ 1998 contract.  A previous lawsuit filed by Moncrief in 2006 alleging breach of contract was dismissed after Gazprom argued the dispute required mediation. While the new case accuses Gazprom of stealing Moncrief’s secret market research -- revealed during the negotiations -- the claim still relates to the contract and still requires mediation, Gazprom argues.  “For nearly a decade, Moncrief Oil International Inc. has tried to do the impossible -- prevail on claims against OAO Gazprom and various subsidiaries based on an alleged cooperation agreement while simultaneously avoiding that agreement’s binding arbitration clause,” Gazprom said in the filing. read

 
9/08

Inside counsel should consider revisiting arbitration clauses

In light of recent landmark rulings, inside counsel should keep a close pulse on the emerging consumer-friendly trends of the state courts and consider revisiting the standard arbitration clauses, which for years have been used as contractual protective shields for Corporate America. read

 
9/03

What Your Financial Advisor’s Mandatory Arbitration Clause Means for You

There’s nothing arbitrary about mandatory arbitration clauses, but you can be purposeful in how you scrutinize them. The fine print you read before you sign can save you headaches and expenses down the road. Such clauses are in the fine print of virtually every contract you read from securities brokers. They’re also nonnegotiable. You might be able to change other parts of the contract, but if you try to strike out the arbitration clause to preserve your right to bring a complaint through the court system, the advisor will likely tear up the contract.  read

 
August 2014
8/17

White House Order May Reignite Employment Arbitration Debate

A White House executive order restricting mandatory arbitration clauses for employees of large federal government contractors is ripe for a challenge, according to some attorneys.  Labor and employment lawyers said they expect the order's direct impact will be limited, but its effect on the public discourse regarding arbitration of employment disputes could be significant. President Barack Obama's order may conflict with the Federal Arbitration Act, some attorneys said, and a legal challenge is possible. Plaintiffs attorneys may cite the order as ammunition to attempt to discredit arbitration clauses by other employers. The Fair Pay and Safe Workplaces Executive Order, signed July 31, says companies with federal contracts of $1 million or more may not require employees to enter into pre-dispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act or from torts related to sexual assault or harassment. read

 
8/16

Global cotton body to speed up dispute settlement process

The International Cotton Association Limited is in the process of working out a new non-binding mediation process to expedite the disputes and ensure sanctity of contracts, its President Mohit D Shah said here on Tuesday. “There is a possibility to introduce a non-binding mediation, whereby buyers and sellers will be able to sit and discuss to resolve the issue. Some sort of announcement can be expected soon,” he said, on the sidelines of a cotton conference organised by the Indian Cotton Federation in Coimbatore. ICAL’s annual conference is slated at Dubai in the first week of October, and Shah is hopeful of making some announcement on the new mediation process during or just ahead of the conference. read

 
8/13

Making the Case for Arbitration

Is litigation “better” than arbitration? What does “better” mean, and who decides? The debate over arbitration vs. litigation has been going on for years, and will likely continue . . . with no clear winner. Aaron Foldenauer essentially invited this discussion in his July 29 article on CorpCounsel.com, “Big Risks and Disadvantages of Arbitration vs. Litigation.” While my article responds to some of the criticisms of arbitration in that one, I hope that it is a thoughtful counterpoint. I speak from the standpoint of one who, for over 40 years, has counseled businesses and their owners, tried their cases in both court (jury and nonjury) and arbitration, and served as neutral arbitrator, either as sole arbitrator or as a member of chair of a multiarbitrator panel, in hundreds of commercial cases. read

 
8/11

Obama strikes a blow against the scourge of forced arbitration

Little noticed in coverage of President Obama's signing of the Fair Play and Safe Workplaces executive order July 31 was a provision that has been called "one of the most important positive steps for civil rights in the last 20 years."  The statement comes from Paul Bland of the public interest group Public Justice, quoted by Emily Bazelon of Slate. He's right; what he's referring to is a provision of the order that bars employers from forcing workers to bring workplace discrimination, sexual assault or sexual harassment cases only through arbitration. As Bazelon reports, the order applies to firms with federal contracts valued at more than $1 million. But that's plenty. read

 

Taking a Broker to Arbitration

If you have a problem with your investment broker and you cannot resolve the dispute on your own, you probably won’t get your day in court. But you will be heard, most likely in a conference room somewhere, before a panel of arbitrators. The moment people open a brokerage or investment account, they most likely — and perhaps inadvertently — waive their right to sue. The fine print of most customer agreements almost always contains a clause that says the customer agree to resolve any future disputes through arbitration, largely through the forum operated by the Financial Industry Regulatory Authority, Wall Street’s self-regulatory organization, known as Finra. read

 
July 2014
7/29

Big Risks and Disadvantages of Arbitration vs. Litigation

Three recent high-profile arbitral awards highlight the risks of arbitration and demonstrate that, contrary to widespread belief, arbitration is often not cheaper, faster or more predictable than litigation. These three awards, as well as emerging trends in arbitral proceedings, call into question the common practice among corporations of including contractual provisions mandating arbitration in the event of any disputes. read

 
7/28

UK It's time to get serious about arbitration

It’s time to face the facts. The UK coalition government’s obsession with mediation has failed. It is now time to get serious about an alternative which has been overlooked for too long: arbitration. The family courts are overcrowded. A huge number of people seeking a divorce, or the right to see their children have put a significant strain on the system. The government’s solution? Get more people to choose mediation. In an attempt to prove its effectiveness, the government’s action on the issue has proved the opposite: mediation is not the answer. read

 
7/22

Privatization of justice & "Sharia courts" 

The apex court in its landmark decision on 7th July, 2014 held that sharia courts are not courts as Indian legal does not recognize a parallel judicial system. But then is it not a fact that privatization of justice is fact of life not only in India but in most developed countries? Does our law not recognize arbitration and other alternative methods of dispute resolution? Are not sharia courts and fatwas different and therefore should not be clubbed together? What has been the performance of sharia courts in last 94 years? Has not the latest decision given new lease of life to the sharia courts? read

 
7/13

Is Your Arbitration Clause Outmoded?

Although arbitration is a “creature of contract” and many arbitrations proceed in the manner outlined in the arbitration clause, it is not unusual for the parties and their counsel to alter the terms of the original clause to suit the dispute at hand. Often a dispute has arisen years after the arbitration clause was drafted, and circumstances have changed. The clause may no longer be appropriate. Although the parties and their lawyers may have strong disagreements on the merits of the case, they understand that stipulating to a customized process that suits the dispute is a huge benefit to everyone involved. This flexibility is one of the strong points of the arbitration process. The following suggestions are just a few of the ways to alter an outmoded clause: read

 
7/10

'Big Short' Case Raises Questions About Finra Arbitration

Deeb Salem, the former Goldman Sachs trader who helped devise the firm’s brilliant and highly profitable proprietary bet against the mortgage market, has never been shy about trumpeting his accomplishments. Mr. Salem no longer works at Goldman — he decamped to GoldenTree Asset Management, a New York hedge fund, in 2012 — but his continuing lawsuit, which contends the firm shortchanged him about $21 million in bonus and deferred compensation during the years after the financial crisis, raises fresh questions about the fairness of Wall Street’s compensation practices, its willingness to make scapegoats out of former employees and the arbitration system — run by the Financial Industry Regulatory Authority — that everyone who deals with Wall Street is forced to use to resolve monetary disputes. read

 
7/08

How Consumers are Getting Screwed by Court-Enforced Arbitration

The Supreme Court has given financial institutions and employers a license to do wrong—and it’s hitting the poor especially hard. For more than forty years, the Supreme Court’s conservatives have been engaged in a campaign to shut the courthouse door to consumers, working people, small businesses and others seeking redress for corporate wrongdoing. In recent years, and especially since Chief Justice John Roberts and Associate Justice Samuel Alito joined the Court, a major weapon in this campaign has been the Federal Arbitration Act (FAA) of 1925. The conservatives have used the act to prevent victims of such abuses from seeking redress in the courts, forcing them into pre-dispute arbitration instead. In doing so, they lose a public trial, a jury and a neutral judge, as well as an appeal to a higher court; in many cases they may also have to give up discovery rights. It is not uncommon for them to wind up before an arbitrator who is dependent upon the defendant’s business community for work and fees, and who may not even be legally trained. Not surprisingly, those forced into arbitration almost always fare much worse than they would in court. read

 
7/02

Want to require an arbitration agreement? That’s fine as long as it’s fair to employees

Here’s some good news for employers that want to use arbitration as a way to resolve employment disputes instead of relying on federal or state courts: Imposing a fair arbitration policy on applicants as a condition of employment is fine. Once the applicant “takes” the take-it-or-leave-it arbitration agreement by accepting the job after having a chance to review it, she’s stuck with it. read

 
June 2014
6/23

ADR may put courts out of (small) business

In light of the continued fall in court cases and the rising use of ADR, is there a future for our courts in Scotland? Should the decline we have seen over the past four years continue, then by 2020 the Scottish Courts will very much be the minority player in the resolution of disputes in Scotland. There will, of course, always be the need for the courts for certain cases and parties. It does appear, however, that their role will become increasingly specialised and will only deal with the high end, complex disputes involving multi-million sums. read

 
6/09

Bob Buckley: Arbitration favors the deep pockets, not you

A number of years ago, large corporations discovered that there was a legal way of depriving consumers and employees of their constitutional right to a trial by jury. It is called “alternative dispute resolution,” which is just another way of stating that the little guy is not getting a full measure of justice. How many times do you sign an agreement that provides for arbitration in the event there is a dispute? Many consumer agreements today regarding phone service, cable television service, car sales, or even your employment agreement have arbitration provisions to which you have “agreed.” It's not like you have any negotiating power, because if every service provider dictates it there is no option. read

 
6/05

Your Contract Might Be Useless Without an Arbitration Clause

You are vulnerable without an arbitration clause in your contracts and it could prove to be devastating. Contracts are relatively useless if you cannot enforce them without too much hassle; enforcing them through litigation may be too costly and time-consuming to be practical. An "arbitration clause" is simply a provision in a contract that requires the parties to resolve disputes through private arbitration rather than litigating them in court. These clauses have become very popular of late since we live in a litigious society where often a breach of contract leads to one of the parties filing a lawsuit. Most people do not realize how costly and time-consuming it typically is to use the courts to enforce contracts. read

 

Big-Business influence: Madonnna, jury trials and mandatory arbitration

Madonna made news recently when she got a doctor’s note to avoid jury duty. The material girl’s no-show was not meant to be a statement about the often-futile system of civil justice in America, but it might as well have been. The influence of big business on our Supreme Court and elected officials over the years has resulted in a reality that civil “justice” is a joke, particularly for consumers and most employees. Our “right” to go to court has been virtually eliminated and in its place, the process of binding arbitration now resolves most consumer, employment, anti-trust, and civil rights disputes. Arbitration has virtually eliminated an aggrieved person’s right to go to court and seek justice. read

 
May 2014
5/27

Using arbitration agreements to manage arbitration cost and risk

Arbitration has been under attack as too expensive, too cumbersome, too slow, too arbitrary and incurring too many of the costs of litigation but delivering few of the promised benefits of ADR. Below are strategies — many of which may be employed in the arbitration agreement itself — that may reduce some of the perceived risks and costs. Many of these strategies require corporate counsel to be sensitive to issues perhaps more familiar to arbitration counsel, and to ask clients the necessary questions. read

 

Germany Mulls Arbitration for Web 'Right to Be Forgotten'

The German government is considering setting up arbitration courts to weigh in on what information people can force Google Inc. and other search-engine providers to remove from results. Following a European Union court decision this month granting consumers the “right to be forgotten,” the Interior Ministry in Berlin would seek to establish “dispute-settlement mechanisms” for consumers who file so-called take-down requests. If search providers introduce automatic deletion, public information would be at risk, the ministry said. “Politicians, prominent figures and other persons who are reported about in public would be able to hide or even delete reports they find unpleasant,” it said in a statement. The ministry suggested that the removal of information shouldn’t be left to company algorithms. read

 

Arbitrator, not court, decides arbitration agreement’s enforceability, California Court rules

A trial court lacked authority to rule on the enforceability of an arbitration agreement when the parties had contracted to delegate questions about the agreement’s enforceability to the arbitrator, the California Court of Appeal has ruled, reversing the denial of arbitration in a wrongful discharge action. Although the agreement’s delegation provision was in an adhesive contract, drafted by the employer and presented to the employee on a take-it-or-leave-it basis, and despite the fact the employee stated she was worried she would lose her job if she refused to sign it, the Court found the agreement was enforceable because it was not overly harsh or one-sided, and therefore, not substantively unconscionable. read

 
5/20

Mandatory Arbitration Offers Bargain-Basement Justice

The financial services industry is already forming battle lines in advance of the Consumer Financial Protection Bureau's expected proposal to curtail the use of mandatory arbitration in consumer financial contracts. The industry would like to continue its current widespread practice of eliminating consumer access to courts, including the right to bring class actions. Consumers are instead forced to resolve disputes in individual arbitrations with decision-makers chosen by the financial firms. The debate over binding mandatory arbitration comes down to this: Is it fair for a business to effectively force its consumers into a dispute resolution system that it has selected? read

 

Wondering What The Difference Is Between Mediation and Arbitration?

Most Americans know what litigation is even though the majority have likely never been involved in a lawsuit, other than perhaps in small claims court. Many have heard of mediation and arbitration and alternative dispute resolution, but few likely know exactly what they are and how they differ. I will explain the differences in this article. read

 
5/05

Arbitration Is Fair and Efficient for Consumers

The Consumer Financial Protection Bureau has released phase one of its study on the use of mandatory arbitration clauses in connection with consumer financial products and services. Among the study's preliminary findings, the CFPB determined that larger institutions are more likely to use arbitration clauses, arbitration clauses in account agreements can often be complex, and these agreements often contain class-action waivers. The preliminary study, released in December, read alone might also suggest that arbitration clauses could disadvantage consumers. However, because it was only a preliminary look, the report failed to paint a complete picture of the costs and benefits of arbitration. read

 
April 2014
4/22

Finra's Arbitrators: Dubious, Asleep—Sometimes Dead

When a couple in Wichita claimed they lost $187,500 in what they called a Ponzi scheme orchestrated by a Morgan Stanley (MS) broker, the industry-funded Financial Industry Regulatory Authority (Finra) provided a list of potential arbitrators to resolve the dispute. Two of the people were dead, one for more than two years, according to Diane Nygaard, the couple’s lawyer. She calls the faulty list a sign of a broken system that has failed to protect investors. “If it were a regular judicial system, you would not have a case appointed to people who are dead,” she says. “Wall Street should not have a special pet court that they operate.” read

 

General Mills abandons mandatory arbitration after consumer outcry

General Mills Inc., maker of Cheerios and other grocery staples, has reversed a recent change to its online legal policy after an outcry by consumers.  The policy had been quietly updated last week to include terms under which any dispute with the company would have to be decided through arbitration, a change first reported by the New York Times last week. Critics and legal experts said the new terms could cost consumers their right to sue in court if they merely "liked" General Mills' social media pages, downloaded coupons from its website or entered any company-sponsored contests. General Mills initially criticized the media reports on the policy, saying they had mischaracterized it. The company also defended arbitration as "a straightforward and efficient way to resolve such disputes — and many companies take the same approach. We even cover the cost of arbitration in most cases." But the coverage set off consumer outcry on social media, eventually leading to the abrupt reversal Saturday. read

 
4/17

State To Expand Court-Sponsored ADR Programs

The Connecticut Judicial Branch has announced a host of initiatives to improve court-sponsored alternative dispute resolution in order to keep up with the demand to resolve civil cases short of trial.  New initiatives announced by Chief Justice Chase Rogers will include expanding the number of judges who are trained to serve as mediators, to begin later this year. There are currently 60 judge and judge trial referees available for the Judicial Branch's ADR program, but many are not available to serve for lengthy periods of time as mediatiors. Increasing the number of judges who are available to provide mediation services on more than a limited basis to help parties reach a settlement will fill vacancies created by several Superior Court judges who left the bench in recent years to start their own mediation practices in recent years, Rogers said.  Another new initiative is to have attorneys appointed to serve as mediators. Rogers said the attorneys could be hired by the branch on a case by case basis, similar to the current appointments of attorney trial referees. "For example, attorneys with particular expertise in construction law, commercial disputes or probate law could be an invaluable asset in resolving those kinds of cases, where a substantice expertise in a specialized area is essential to understanding the issues of the case," Rogers said. read

 
4/15

Finra gets arbitration process back on track in Puerto Rico

Finra has expanded its pool of arbitrators and is ready to move forward with the hundreds of complaints related to collapses in Puerto Rico bond funds, according to an announcement posted on its web site Monday. After several months of deliberation, Finra said it will resume processing investor complaints now that it has about 700 arbitrators from Southeastern U.S. and Texas who are willing to fly to Puerto Rico. The Financial Industry Regulatory Authority Inc. has also resolved issues related to the language barrier as UBS AG and Bank of America Merrill Lynch agreed to pay fees for translators. read

 
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