In 2020, Congress passed the No Surprises Act to protect medical consumers from surprise bills when they received emergency treatment, only to later discover the doctor did not accept their insurance. The Act established a process by which, rather than bill patients directly, out-of-network doctors and insurers would engage in mandatory arbitration. Today, the NY […]
Category Archives: Arbitration
The case is Stephens v. Am. Arb. Ass’n Inc., No. CV-25-01650, 2026 WL 878981 (D. Ariz. Mar. 31, 2026). Here’s a paragraph from the opinion on the antitrust claim: With regard to the first element of Plaintiffs’ claim under § 2 of the Sherman Act— monopoly power in the relevant market—the AAA states in its […]
Last year, four consumers who were parties to arbitration agreements in which the sole choice of forum for dispute resolution was the American Arbitration Association sued the company under the Sherman and Clayton Antitrust acts, the Arizona Constitution, and state antitrust and unfair and deceptive practices laws. They alleged monopolistic practices, and that “the AAA […]
Public interest groups filed an amicus brief this past week in the case Gemini Trust Company, LLC v. National Association of Consumer Advocates, Inc. (NACA), opposing the company’s attempt to force arbitration of the dispute. In 2024, *NACA sued Gemini, a cryptocurrency exchange, in the District of Columbia Superior Court, alleging that the company’s terms […]
Ryan H. Nelson of South Texas has written Pre-Arbitral Red Tape. Here’s the abstract: While legal scholars debate the merits of mandatory arbitration, a more insidious barrier to justice has quietly proliferated beneath their radar. I call that barrier “pre-arbitral red tape”—that is, procedural condition precedents to initiating arbitration in a pre-dispute agreement between a consumer […]
Yesterday, the California Supreme Court issued a decision in Fuentes v. Empire Nissan, in which it addressed how the “tiny and unreadable print” in which a contract (here, an arbitration agreement) is printed plays into a court’s unconscionability analysis. The court held “that a contract’s format generally is irrelevant to the substantive unconscionability analysis, which […]
President Trump is no friend of consumer arbitration. As longtime readers of the blog know, during his first term, Trump signed the Congressional Review Act resolution blocking the CFPB’s arbitration rule from going into effect. So it is intriguing to see Trump sue JPMorgan Chase over the bank’s debanking him when his contract with the […]
Myriam E. Gilles, now of Northwestern, has written Arbitration In Name Only. Here’s the abstract: Modern arbitration clauses hide a dirty secret: many aren’t arbitration at all. They masquerade as mutual commitments to fair and efficient private dispute resolution but, in truth, are mere imitations of genuine arbitration provisions. Some reserve for the drafter the power […]
There are many decisions addressing whether website interactions constitute a valid and binding contract–frequently, one to arbitrate. Under California law, “scrollwrap” or “clickwrap” offers, which require a user to affirmatively agree to terms and conditions after being presented with them, are are generally held to create enforceable contracts. On the other hand, “browsewrap” offers, where […]