CONSUMER ARBITRATION AGREEMENTS AND COLLECTIVE ACTION WAIVERS: WHY THE SUPREME COURT S DEFENSE OF ARBITRATION HAS GONE TOO FAR

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1 CONSUMER ARBITRATION AGREEMENTS AND COLLECTIVE ACTION WAIVERS: WHY THE SUPREME COURT S DEFENSE OF ARBITRATION HAS GONE TOO FAR Alexander C. Hyder * ARBITRATION AGREEMENTS COLLECTIVE ACTION WAIVERS FEDERAL ARBITRATION ACT Over the last two decades, the Supreme Court of the United States has been attempting to shrink lower court dockets with decisions both protecting and promoting the use of arbitration. What seems commendable in the abstract, however, has come at a steep price in reality. Consumers and other small-dollar claimants are kept from effectively vindicating their rights under consumer and anti-trust law, thereby permitting injurious conduct to go undeterred, unnoticed, and unsettled. The problem appears to have climaxed following the Court s decision in American Express Co. v. Italian Colors Restaurant, in which the Court cemented the enforceability of arbitration clauses with collective action waivers once held to be unconscionable under state contract law. These provisions, increasingly found in standard form adhesion contracts, bind parties of grossly unequal bargaining power to bilateral arbitration without the ability of cost sharing, collaboration, or class actions. In effect, these provisions operate to immunize the larger drafting party from liability for violations of consumer and anti-trust law. This paper explores the underlying cause of the issue, as well as the effects of the Court s jurisprudence on both corporations and would be claimants. It also analyzes the diminished, if not eviscerated, ability to privately enforce consumer and anti-trust law, and explores who is in the best position to fill the enforcement void left by the now powerless private actor. * J.D. Candidate Spring 2015, Duquesne University School of Law, B.A. Political Science, The Pennsylvania State University

2 112 Duquesne Business Law Journal Vol INTRODUCTION PART I: HISTORY OF ARBITRATION AND COLLECTIVE ACTION WAIVERS I. The Federal Arbitration Act and Preemption II. The Advent of Collective Action Waivers III. Judicial Enforcement of Collective Action Waivers A. First-Wave of Challenges: State Law Unconscionability B. Second-Wave of Challenges: The Effective Vindication Doctrine PART II: WHAT DOES THIS MEAN FOR CORPORATIONS, CONSUMERS I. Effect on Corporations II. Effect on Consumers PART III: AVENUES FOR REFORM AND ENFORCEMENT I. Legislative Reform II. Administrative Enforcement III. State Attorney Generals and the Private Bar PART IV: CAN CONSUMERS ACHIEVE INVALIDATION OF COLLECTIVE ACTION WAIVERS? I. Post-Italian Colors, Consumers Have Three Options II. Modification of the Effective Vindication Doctrine CONCLUSION INTRODUCTION The debate over mandatory arbitration has been ongoing since the early twentieth century. There was a clear policy among state legislatures and courts disfavoring agreements to arbitrate, particularly centered on concerns regarding arbitration s ability to effectively serve as an alternative to the judicial forum. Skepticism continued throughout the twentieth century, even amid attempts by Congress to curtail such skepticism via enactment of the Federal Arbitration Act in Federal Arbitration Act, Pub. L. No , 42 Stat. 883 (1925) (codified as amended at 9 U.S.C (2013)).

3 2013 Consumer Arbitration Agreements 113 Then in the 1980s, the Supreme Court began to intervene by ushering in a liberal federal policy favoring arbitration. 2 Aided by this favorable jurisprudence, mandatory arbitration agreements began to find their way into the large majority of consumer contracts. 3 As this trend continued, corporations sought new opportunities to limit their liability by including collective action waivers, which required arbitration of all disputes on an individual basis. 4 Arbitral bodies, being private for-profit entities, also saw such provisions as new opportunities to draw business from large corporations. 5 Specifically, these for-profit arbiters encouraged implementation of such provisions, suggesting that only through collective action waivers could corporations avoid sizeable damages from class actions. 6 These benefits, however, come at a steep price to consumers, who effectively waive critical rights in take-it-or-leave-it contracts of adhesion. 7 Consumers are not only forced to bring their dispute in a forum guided by individual entities with a financial incentive to rule against them, 8 but must do so bilaterally and without use of any collaborative or costsharing mechanism available in the judicial forum. If enforced, these provisions result in a relinquishment of any meaningful attempt by private actors to hold larger, more dominant parties liable for wrongful conduct. Take the plaintiffs in American Express, Co. v. Italian Colors Restaurant 9 as an example. These plaintiffs, whom comprised a number of small business merchants, brought suit against American Express ( Amex ) alleging antitrust violations regarding charge and credit card fees. 10 The small businesses 2. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). 3. See Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373, 392 (2005) (suggesting that collective action waivers emerged as a result of the Supreme Court s jurisprudence favoring arbitration). 4. See Id. at (arguing that corporations sought to take advantage of the Supreme Court s favorable jurisprudence by seeking new ways to decrease their exposure to liability). 5. Id. at Id. 7. See Larry J. Pittman, Mandatory Arbitration: Due Process and Other Constitutional Concerns, 39 Cap. U. L. Rev. 853, 861 (2011) (arguing that it is a legal fiction to think that consumers are voluntarily accepting arbitration); see also Gilles, supra n. 3 at (describing how merchants who objected to American Express merchant agreement were free to terminate the relationship and discontinue acceptance of all American Express cards). 8. See Id., at (discussing the repeat player theory and how consumers do not offer for-profit arbiters the same financial incentives as corporations who bring repeat business to the arbiter) S.Ct (2013). 10. Id. at 2308.

4 114 Duquesne Business Law Journal Vol attempted to create a class action in order to share the costs of an expert economic analysis required in order to prevail in arbitration 11 that would cost at least several hundred thousand dollars, and might exceed $1 million. 12 Given that maximum recovery for an individual small business was $38,549, the only option was to share the necessary costs. 13 These small businesses, however, were not given a realistic opportunity to bring their claims; Amex challenged the formation of the class based on the take-it-or-leave-it service contract that included an arbitration clause with a collective action waiver. 14 This waiver prevented the parties from not only joining a class, but also participating in any avenue for sharing, shifting, or shrinking of necessary costs. 15 These provisions forced the small businesses to relinquish their antitrust claims against Amex, and allowed antitrust violations to go undeterred. The practical effect of these provisions is a de facto immunity for Amex, allowing it to use its monopolistic power to coerce agreement to adhesive contracts that strip all practical means of holding Amex liable for antitrust violations. 16 This serves as a textbook example of the harsh effects that such agreements have on an individual s ability to effectively seek redress for wrongful, injurious conduct. This comment seeks to identify the effects of the Supreme Court s protection of arbitration, and determine whether the Court has gone too far in its protection. It also explains how the use of collective action waivers in standard-form adhesion contracts has left consumers without a viable method of privately enforcing their rights, particularly in the antitrust context where such enforcement is critical to the public interest. 17 Part I outlines the history behind arbitration and the use of collective action waivers, while also describing how the courts and legislatures have handled their use. Part II discusses the effects that such provisions have on corporations and consumers, concluding that the former has placed themselves beyond the reach of aggregate litigation 18 while the latter has been left without a viable method of privately enforcing their rights. Part III points to possible avenues of reform, including 11. Id. at 2316 (Kagan, J., dissenting). 12. Italian Colors, 131 S.Ct. at 2308 (majority). 13. Id. 14. Id. 15. Id. at 2316 (Kagan, J., dissenting). 16. See Id. at 2314 (Kagan, J., dissenting). 17. See e.g., Id. at 2313 (Kagan, J., dissenting) (citing Lawlor v. Natl. Screen Serv. Corp., 349 U.S. 322, 329 (1955)) (stating that Congress created the private cause of action in the Sherman Antitrust Act in order to promote the public interest in vigilant enforcement of the antitrust laws. ). 18. See Myriam Gilles, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev. 623, 627 (2012) (suggesting that the Supreme Court s decision in AT&T Mobility LLC, v. Concepcion resulted in most companies placing themselves outside the reach of aggregate litigation).

5 2013 Consumer Arbitration Agreements 115 administrative enforcement and congressional action, and discusses their likelihood of providing meaningful relief to the now at-risk consumer. Part IV details the few private enforcement options available to consumers seeking to invalidate arbitration clauses and collective action waivers, and proposes that invalidation based on the effective vindication doctrine may still be alive. Ultimately, consumers have been dealt a terrible hand by the Supreme Court of late, and are now forced to play with a deck stacked against them. The question now becomes whether consumers will even play the game at all? The Duquesne Business Law Journal is a bi-annual publication which focuses not only on topics that are currently affecting the world of business, but also on evolving Supreme Court case law, and influential persons in the business community. If you have been enjoying this article, full text copies of this journal are available from the Duquesne Business Law Journal for $8.00 an issue, $15.00 per volume, or through various online databases at the citation 16 Duq. Bus. L.J. 1 (2014).

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