With reforms to forced arbitration in their sights, the Senate Judiciary Committee heard competing testimony from a panel of attorneys about the impact the practice has on businesses and consumers.
At issue is a system proponents believe helps keep legal costs reasonable, but that opponents believe is being used to immunize companies from litigation. Sen. Richard Blumenthal, D-Connecticut, is pushing legislation to eliminate forced arbitration clauses in employment, consumer and civil rights cases.
An attorney from the nonprofit advocacy group Public Justice and a law professor from New York warned senators that arbitration is a rigged system that has left little recourse for wronged employees and consumers.
Myriam Gilles, a professor at Yeshiva University’s Cardozo School of Law, described how class action bans tucked into arbitration clauses have insulated companies from liability.
“Let’s just pause and think about what this really means: what companies have done is they’ve immunized themselves against class and collective litigation,” Gilles said. “So individuals are left with nowhere—nowhere to seek redress.”
But Alan Kaplinsky, a partner at Ballard Spahr, and Victor Schwartz, who co-chairs the public policy practice group for Shook, Hardy & Bacon, cast arbitration as a quicker and cheaper method of resolving matters than litigation.
Also speaking Tuesday were two men who said they were compelled into arbitration: Kevin Ziober, a Navy reservist who was fired from his job before his deployment to Afghanistan, and Alan Carlson, a restaurant owner who brought a 2003 class action suit against American Express Co.. The Supreme Court ruled in 2013 that Carlson had to take his case to individual arbitration.
Here are some highlights from Tuesday’s hearing:
>> Arbitration hurts consumers. Paul Bland, the executive director at Public Justice, disagreed with Kaplinsky and Schwartz’ stance that arbitration has proven to be an effective and fair forum. Instead, he argued, it’s particularly ineffective for wronged consumers. Bland pointed to a Consumer Financial Protection Bureau study that looked at American Arbitration Association data, to make his point. He said that while there may be hundreds of millions of lender contracts in the country, consumers only filed an average of 411 arbitration cases each year, over a three-year period. “People don’t bring cases like this, the small complicated cases,” he said.
>> Class actions under the microscope. Sen. Lindsey Graham said at one point in the hearing that class action reform, not just arbitration reform, was “probably” something that deserved a close look from Congress. But Gilles, under questioning from Sen. Chris Coons, D-Delaware, defended class action lawsuits as a form of redress for those who suffer a general type of injury. She said recent congressional action and federal court rulings have made class actions more difficult to bring, and urged the committee to focus on reforming arbitration rather than clamping down on class actions.
If an individual has a claim that’s worth a hundred dollars, Gilles said, “you are certainly never going to bring that claim in individual arbitration. So, as much as Alan Kaplinsky and Victor Schwartz tell us about the fact that arbitration is cheaper, fairer, better—it’s not, because nobody brings arbitrations, and they don’t do it because it’s just not worth the candle.”
>> The business impact of tightening arbitration. Sen. Chuck Grassley, R-Iowa, asked the panel whether Congress should consider the potential cost for consumers and their access to services when mulling changes to arbitration. Schwartz replied that going to court would ultimately be more costly for businesses than arbitrating issues. “That cost does not disappear; it goes into the price of the product, and I think it’s an important thing to look at very carefully as you make decisions about changing the system,” Schwartz said.
Kaplinsky pointed to a CFPB study of a proposed Obama-era rule that would have prohibited certain financial services companies from using pre-dispute arbitration agreements in contracts to block consumer class actions. The CFPB found that 53,000 providers who used arbitration agreements would incur between $2.6 billion and $5.23 billion over a five-year basis to defend additional class actions, he said. (Congress overturned the Obama-era rule in 2017.)
>> Debate over choice in arbitrators. An early focus of the hearing was whether people have any say in choosing the arbitrators resolving matters. Bland said one of his clients sought to bring a complaint about a company employee who she claimed raped her. When she received a list of potential arbitrators, it only included corporate defense attorneys working at firms who specialized in defending against gender discrimination or assault cases.
Graham asked Kaplinsky whether that scenario was possible, and whether there was a legal requirement that a roster of potential arbitrators include more than lawyers who’ve defended companies. Kaplinsky said it is “very clear” that an arbitrator must be neutral and should not be somebody who’s only represented one side of a matter. When Graham asked Bland whether he raised Kaplinsky’s point, Bland said it was “absolutely clear” that it wouldn’t be possible to make such an argument. He said courts have enforced arbitration clauses where “everyone on the list is a defense lawyer.” Bland said: “That would be a frivolous defense.” Kaplinsky said he disagreed with that view.
Graham said that was a big disagreement and added he will look into the issue of arbitrators on his own. Ziober and Carlson later testified that neither had a role in choosing the arbitrators who handled their claims.