Posts in Arbitration.

On May 26, 2022, the Eleventh Circuit issued an opinion reversing the Southern District of Florida’s denial of the appellant’s motion to compel arbitration, therein finding that the district court erred in failing to apply the arbitration agreement’s delegation clause, as agreed to by the parties. The appellate court answered the alliterative tongue-twister of “whether an arbitrator should arbitrate arbitrability” in the affirmative.

In Attix v. Carrington Mortgage Services LLC, –– F.4th ––, 2022 WL 1682237 (11th Cir. May 26, 2022), the plaintiff filed a ...

After months of wrangling, the U.S. Senate voted to pass substantive and impactful legislation on Tuesday evening regarding the Consumer Financial Protection Bureau. On July 10, 2017, the Bureau released one of its most controversial and impactful rules to date, prohibiting certain types of arbitration agreements in contracts between consumers and certain financial services companies. Against strong industry disapproval and pushback, the Arbitration Rule reflected the Bureau's focused determination to overhaul the use of consumer arbitration and to ban reliance on ...

Posted in: Arbitration

*Co-authored by Charles Davis [1]

On May 5, 2016, the Consumer Financial Protection Bureau ("CFPB") held its fourth field hearing on Arbitration and issued a proposed Rule that would prohibit the use of arbitration clauses that block consumers' participation in class actions in contracts for consumer financial products and services. The Rule would also require providers who use pre-dispute arbitration agreements to submit certain records relating to arbitral proceedings to the CFPB. The Rule is expected to take effect during the summer of 2017.

Upon issuance of the Final Rule ...

Posted in: Arbitration, CFPB

The Supreme Court Monday re-affirmed the enforceability of class-waivers in arbitration agreements. The five-justice majority felt the need to rebuke the California courts for trying to end-run Federal preemption through a latent "States-rights" nullification approach. Two of the three dissenters saw the case as a consumerist crusade against big business. But the biggest take away for businesses using arbitration clauses just might lie hidden within the opinion. DirectTV's Conditional Class-Waiver. DirectTV's consumer contracts contained a conditional class waiver ...

In Arrasola v. MGP Motor Holdings, LLC, 3D15-381, 40 Fla. L. Weekly D1837b (Fla. 3d DCA August 5, 2015) the Florida Third District Court of Appeal was asked to resolve whether a court or an arbitrator should decide if an automobile purchase agreement containing an arbitration provision was abandoned or terminated by the parties and/or whether or not the arbitration provision itself was unconscionable. While it has become common place for arbitration agreements themselves to contain provisions which give questions of enforceability and arbitrability to the arbitrator, the ...

Posted in: Arbitration, Florida
The Consumer Financial Protection Bureau ("CFPB" or "Bureau") released a study last week regarding the financial industry's use of pre-dispute arbitration agreements. This is the CFPB's third study on the issue since 2013, and, like the first two studies, reveals the Bureau's negative assessment of pre-dispute arbitration agreements. The Bureau initiated its investigation into the issue pursuant to Congress's authorization in the Dodd-Frank Act to analyze the impact of arbitration clauses in consumer contracts for financial products and services. Specifically, the ...
Posted in: Arbitration, CFPB

The U.S. Court of Appeals for the Eleventh Circuit recently upheld a lower court's denial of a bank's motion to compel arbitration of a dispute between the bank and a depositor concerning alleged excessive overdraft fees. To reach its decision in Dasher v. RBC Bank (USA), Case No. 13-10257 (11th Cir. Feb. 10, 2014), the Eleventh Circuit largely relied on basic state contract law. Prior to the lawsuit, the bank entered into an account agreement with the depositor which contained a broad arbitration clause. The account agreement contained a termination clause which provided that ...

Weller v. HSBC Mortgage Services, Inc., No. 13-cv-00185-REB-MJW, -- F. Supp. 2d -- , 2013 WL 4882758 (D. Colo. Sept. 11, 2013). The U.S. District Court for the District of Colorado recently held that the Dodd-Frank Act did not apply retroactively to nullify an arbitration agreement contained in a mortgage loan contract. In Weller, the plaintiff mortgagor brought a putative class action alleging violations of the civil RICO statute and Truth in Lending Act, breach of contract, and other claims arising from his mortgagee's "force placement" of insurance on the mortgaged property ...

In Murphy v. DirecTV, Inc., --- F.3d ---, 2013 WL 3889158 (9th Cir. July 30, 2013), consumers brought a putative class action against DirecTV and Best Buy alleging violations of California's Unfair Competition Law and the Consumer Legal Remedies Act. Plaintiffs claimed that defendants purported to sell receivers and DVRs when, in fact, they were leased to consumers on unfair terms. Defendants moved to compel plaintiffs' claims to arbitration and the U.S. District Court for the Central District of California denied their motion on the ground that Discover Bank v. Superior Court, 113 ...

In American Express Co. v. Italian Colors Restaurant, ___ S. Ct. ___ (2013), the Court continued its recent trend of strictly enforcing the terms of arbitration agreements. In a 5-3 decision, penned by Justice Scalia, the Court held that a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act (FAA) even if the high cost of proving an individual claim in arbitration exceeds the plaintiff's potential recovery. The plaintiffs were merchants that had agreed with American Express to settle all disputes between the parties via arbitration ...

In Zaborowski v. MHN Gov't Services, Inc., 2013 WL 1363568 (N.D. Cal. April 3, 2013), the Northern District of California held that an employment contract arbitration agreement, which incorporated the filing fee schedule set forth in the rules of the American Arbitration Association ("AAA"), was unconscionable. The Zaborowski plaintiffs brought a class action lawsuit against their employer seeking damages in excess of $75,000, alleging that the employer had deprived them of overtime compensation by misclassifying them as independent contractors rather than employees. The ...

Posted in: Arbitration
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