An 11-judge en banc panel of the Ninth Circuit heard oral argument this week in Kilgore v. Keybank, an important consumer arbitration case. Kilgore presents the question whether the Federal Arbitration Act and the Supreme Court's decision in AT&T v. Concepcion require courts to enforce arbitration clauses even when they would block consumers from pursuing […]
Category Archives: Arbitration
Richard Frankel of Drexel has written The Arbitration Clause as Super Contract. Here's the abstract: It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on “equal footing” with other contracts. Nonetheless,federal and state courts have placed arbitration clauses on a pedestal by creating special interpretive rules for […]
Here (login required). An excerpt: Likewise, there was initially deep skepticism inside the banking industry about the CFPB's arbitration study, and there is still a belief among industry insiders that the agency's research is likely to lead to new regulations. * * * But over the last few months, industry observers have been relatively pleasedwith they […]
Here. Some highlights: Of the 92 financial institutions studied, 43 percent contain mandatory binding arbitration clauses. This number increases to 47 percent when considering only banks, because none of the credit unions studied include an arbitration clause in their account agreements. * * * The larger the financial institution, the more likely an account agreement will […]
David Horton of UC Davis has written Federal Arbitration Act Preemption, Purposivism, and State Public Policy, 101 Georgetown law Journal (2013). Here's the abstract: The relationship between the Federal Arbitration Act (“FAA”) and state public policy has long been unsettled. According to some judges, scholars, and litigants, the FAA precludes courts from invalidating arbitration clauses […]
One of things that bothers opponents of binding pre-dispute mandatory agreements in consumer contracts is that often they don't seem like agreements at all. In most cases, the arbitration clauses are buried in take-or-leave-it contracts that the consumer doesn't read (and sometimes has little opportunity to read). Arbitration opponents sometimes say that contracts of adhesion […]
Myriam E. Gilles of Cardozo has written Killing Them with Kindness: ‘Consumer-Friendly’ Arbitration Clauses after AT&T Mobility v. Concepcion, forthcoming in Notre Dame Law Review. Herer’s the abstract: In AT&T v. Concepcion, the Supreme Court struck California’s so-called “Discover Bank rule” – a judge-made rule providing that arbitration agreements attended by class action waivers are […]