Posts belonging to Category Arbitration

Seemingly bucking the trend of corporations fighting to force consumers into individual arbitration to avoid class actions, Charles Schwab Corp., the prominent “discount broker,” has decided to revise its client account agreements to eliminate a provision that had reliably allowed Schwab to prevent clients from filing class actions against it, by requiring clients to take any disputes to individual arbitration.

However, rather than an altruistic gesture on Schwab’s part, removal of the class action waiver comes as the result of a complex set of events, whereby a FINRA (Financial Industry Regulatory Authority) panel decided to permit such waivers, but the decision was later opposed by the larger body of the FINRA itself. Thus, rather than renouncing arbitration and class action waivers altogether, it appears that Schwab is temporarily opting out while the FINRA sorts out its ultimate policy decision. FINRA is the organization that has conducted the bulk of arbitrations between Schwab and its clients.

For some companies, apparently even the famously liberal policy favoring arbitration isn’t enough of an assurance that they can avoid defending a consumer class action in court. Or so the plaintiffs in an antitrust bench trial pending in federal court in New York’s Southern District have posited, pointing to 28 meetings between 1999 and 2003, held among senior representatives of leading national banks, about implementing mandatory arbitration for credit card customers. See Ross v. American Express, No. 04-5723 (S.D.N.Y. filed July 22, 2004); Ross v. Bank of America, No. 05-7116 (S.D.N.Y. filed Aug. 11, 2005).

The trial opened in January of 2013, with the plaintiff himself testifying candidly: “I find it particularly abhorrent that all the credit card companies got together under the covers to basically screw the American consumer.” It is alleged that the banks reveled in the favorable quid pro quo likely to result from directing massive filing fees at reliably pro-defendant arbitrators, with the National Arbitration Forum (NAF) receiving particular praise from one of the bank defendants, First USA.

The meetings, with agenda items such as “the end of class actions,” brought together otherwise staunch competitors, including Bank of America, American Express, Capital One, Chase Bank, Discover, HSBC, MBNA, and Providian. Within three years, every major bank had implemented a mandatory arbitration policy for their credit card customers, and on starkly similar terms. The plaintiff is seeking an eight-year ban on arbitration clauses in credit card user agreements.

The antitrust action has already yielded results, as four of the bank defendants — JPMorgan Chase, Bank of America, HSBC and Capital One — settled in 2010, each agreeing to ban arbitration clauses for three-and-a-half years – a measure due to expire this year. The remaining defendants — American Express, Discover and Citigroup — have steadfastly resisted settlement, and in their closing arguments insisted that there was nothing nefarious in the 28 meetings that are the cornerstone of the plaintiff’s case.

If the plaintiff’s antitrust claims prevail before U.S. District Judge William Pauley and the eight-year arbitration clause ban is imposed, the banks will be unable to partake of the fully legal greasing of the arbitration skids provided by decisions like AT&T Mobility v. Concepcion. It appears that the banks did not foresee that the U.S. Supreme Court would undertake a remarkably similar agenda, and without the burden of antitrust compliance.

Judge Susan Illston has stymied an employer’s attempt to force into arbitration a group of employees alleging that they were erroneously classified as independent contractors. See Zaborowski v. MHN Govt. Servs., Inc., No. 12-5109 (N.D. Cal. Apr. 3, 2012) (order denying motion to compel arbitration). The plaintiffs contend that by misclassifying them as independent contractors, their employer avoided providing them with benefits they are entitled to under California law. Judge Illston found the employment contract that plaintiffs signed to be “so permeated with unconscionability” that the arbitration clause within the contract was rendered unenforceable. Order at 13.

She began her analysis by noting that “Concepcion explicitly reaffirmed California’s general contract defense of unconscionability as applied to arbitration agreements,” adding that “[o]nly ‘defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue’ are preempted by the FAA, and therefore invalid,” quoting directly from the Supreme Court’s Concepcion decision to underscore the continued vitality of California’s unconscionability doctrine. Order at 4.

Judge Illston proceeded to enumerate the various ways in which the at-issue arbitration clause is unconscionable (order at 5-10):

• The arbitration clause is buried in the last of 23 paragraphs, and not set apart or highlighted in any way;
• Signing the arbitration clause was a condition of employment, with no opportunity to negotiate the terms;
• The clause imposes a six-month statute of limitations, far shorter than the usual three-year statute of limitations applicable to workplace violations;
• The clause unilaterally empowers the employer to choose the pool of arbitrators;
• Discovery is limited so as to disadvantage employees;
• The arbitration provision has the effect of negating California fee-shifting statutes designed to address the inherent asymmetry in resources between employers and employees; and
• Similarly, by prohibiting the arbitrator from awarding punitive damages, the arbitration provision further eliminates statutory protections.

Judge Illston concluded that the unconscionable provisions so permeated the at-issue arbitration clause as to not be severable, and on that basis denied the defendant’s motion. While unconscionability analysis is typically fact- and case-specific, the Zaborowski decision is likely to be much-cited by counsel and relied on by judges, as it addresses provisions that frequently appear in the arbitration clauses that are part of employment contracts.

Last week, a twelve-member Ninth Circuit en banc panel issued a new decision in the battle over arbitration and the U.S. Supreme Court’s holding in AT&T Mobility v. Concepcion. See Kilgore v. KeyBank Nat’l Assn., No. 10-15934 (9th Cir. Apr. 11, 2013) (slip opinion available here). In Kilgore, students at a flight-training school sued KeyBank, the originator of their student loans, after KeyBank and the school allegedly colluded to mislead and defraud the students. A three-judge Ninth Circuit panel previously ruled that Concepcion overruled Broughton v. Cigna Healthplans, 21 Cal. 4th 1066, 988 P.2d 67 (1999), and Cruz v. PacifiCare Health Systems, Inc., 30 Cal. 4th 303 (2003), which held that public injunctive relief claims are not arbitrable as a matter of California public policy, in the CLRA and UCL contexts, respectively. See slip op. at 14-16.

In an opinion by Andrew D. Hurwitz, the en banc panel held that the district court should have compelled arbitration because the at-issue arbitration clause did not fall under the public injunction exception to the Federal Arbitration Act (FAA). See slip op. at 6. Accordingly, as the public injunction exception did not apply, the decision did not take the position that Concepcion overruled Broughton and Cruz. Instead, the decision embraces a public/private distinction that could inform the continuing debate around Concepcion’s scope. See slip op. at 16-17. The majority also rejected the plaintiffs’ contention that the at-issue arbitration clause is unconscionable under California law. See slip op. at 12-14.

In a compelling dissent, grounded in the case’s real-life facts rather than arcane doctrines purporting to divine the FAA’s application to Kilgore’s claim against KeyBank, Judge Harry Pregerson detailed the career “crash landing” awaiting the flight-training students who found themselves deeply in debt and without a job. See slip op. at 19-21 (Pregerson, J., dissenting). Pregerson concluded that “the majority opinion strips [the plaintiffs] and their classmates of the ability to find recourse in state or federal court,” and contrary to the majority found the at-issue arbitration clause substantively and procedurally unconscionable under California law. Slip op. at 22-26.

Connecting the unconscionability analysis to the purported efficiencies realized through arbitration, with distinctive candor and pragmatism, Pregerson explained that filing a claim in arbitration costs at least eight times more than filing the same case in California Superior Court, and that “[t]he high cost of arbitration will prevent many students from vindicating their rights, but will not limit KeyBank’s ability to defend itself. This asymmetry makes arbitration all the more unconscionable.” Slip op. at 25 (Pregerson, J., dissenting).