Paul Bland, a staff attorney with Public Justice in Washington, D.C. and a leading advocate for consumers is asking attorneys who are members of the American Bar Association to contact colleagues about a proposed ABA resolution asking Congress to limit the proposed Arbitration Fairness Act.
The Arbitration Fairness Act, H.R. 1020 would end mandatory arbitration in consumer contracts we are compelled to sign when we purchase almost any service or product today — from a cell phone to a new house. It would also cover long-term care contracts. The bill is sponsored by Sponsored by Rep. Hank Johnson (D-GA). It will be introduced in the Senate by Sen. Russ Feingold (D-WI). There is another bill that I have blogged on in the past: the Fairness in Nursing Home Arbitration Act, which. applies to nursing homes, assisted living, and other residential care facilities. Sponsored by Sen. Mel Martinez (R-FL) and Sen. Herb Kohl (D-WI); and Rep. Linda Sanchez (D-CA).
Mr. Bland advises that he just learned that the "Leadership Council" of the ABA Section on Dispute Resolution, has without notice to members adopted a resolution regarding the AFA. While no one outside the Section to his knowledge has seen a written version yet, he advises the resolution effectively says the AFA goes too far and instead endorses an alternative approach that would allow mandatory arbitration if and only if (1) consumers et al are given a pre-dispute chance to opt out and (2) Congress passes legislation regulating the fairness of the mandatory arbitration. The Section intends to put this resolution before the full ABA, in August, and seek approval from the ABA at that time. Such a resolution, if adopted, would then be part of the Chamber of Commerce, insurance companies, big business et al lobbying efforts.
Everyone knows the "opt out" right has proven to be a joke. Many credit card companies put "opt out" rights in their consumer contracts (as a ploy to block unconscionability challenges, by permitting them to argue that the clauses are not adhesive), and because so few consumers (a) read the fine print; (b) understand what this language and idea is about; and (c) are motivated to take affirmative steps to opt out, only the smallest percentage of consumers notice the “opt out” and act upon this right.
To the lawyers reading this, it is difficult to understand how the the American Bar Association could allow itself to be support a proposal that some corporations have been advocating for years as a way to undermine meaningful civil rights and consumer protection action. It’s disheartening, to believe the ABA could be a party to such an explicitly anti-consumer resolution. Certainly, this is not in the public interest. This resolution will be considered at the ABA meeting in August. There is not a lot of time to organize a push against it, but forums like the InjuryBoard blogs and law firm blogs are great places to start.
As Mr. Bland stated in his email : “IF ANY OF YOU HAVE ANY INFLUENCE WITH THE ABA AND YOU’D RATHER NOT SEE THE ABA SIDING AGAINST EMPLOYEES, CONSUMERS, MEDICAL VICTIMS AND SO FORTH, PLEASE RAISE SOME NOISE.”
Civil litigation attorney Billy Cunningham practice concentrates on personal injury, wrongful death, nursing home abuse, business litigation, environmental law and insurance matters. He is licensed to practice in the state and federal courts of Alabama and Mississippi, as well as in the U.S. Court of Military Appeals, U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States.