Master "Refusal of arbitration" thread

[admin]

It seems that the arbitration is an issue that comes up alot, and I'd like to come up with a complete strategy for refusing it.

Here's what I have so far:

Use the following links/letters:
http://whychat.5u.com/arbltr.html
http://www.tlpj.org/briefs/chch2.htm

File them with both the courts and the arbitrator/mediator. Other steps?

[Methuss]

Good link. And it answers at least one of the questions I posted about mandatory arbitration clauses in credit card agreements (they are quite common).

[admin]

US Maritime arbitration laws:

http://www.smany.org/sma/about6-5.html

More case law in favor of refusing arbitration:

http://www.flra.gov/decisions/v39/39-081-4.html

Florida case law for refusal to mandatory arbitration:
http://www.floridamalpractice.com/stat766.209.htm
Basically it says you can never waive your right to trial.

Overall, what I am getting is that you have to prove that both parties have agreed to arbitrate before this can go through. So, if you sign something agreeing to arbitration you are stuck. Is that correct?

[gdouglaslee]

Originally Posted by admin

US Maritime arbitration laws:

http://www.smany.org/sma/about6-5.html

More case law in favor of refusing arbitration:

http://www.flra.gov/decisions/v39/39-081-4.html

Florida case law for refusal to mandatory arbitration:
http://www.floridamalpractice.com/stat766.209.htm
Basically it says you can never waive your right to trial.

Overall, what I am getting is that you have to prove that both parties have agreed to arbitrate before this can go through. So, if you sign something agreeing to arbitration you are stuck. Is that correct?

I don't understand what you mean. If you sign a separate agreement, then yes. But if it is included in any other agreement, then no, it's unenforceable. A judge can strike an entire agreement/contract as uneforceable or can strike separate clauses in the agreement (such as an arbitration clause).

[admin]

Originally Posted by gdouglaslee

I don't understand what you mean. If you sign a separate agreement, then yes. But if it is included in any other agreement, then no, it's unenforceable. A judge can strike an entire agreement/contract as uneforceable or can strike separate clauses in the agreement (such as an arbitration clause).

No, what you stated is exactly what I mean.

Here's a link to some great case law that spells this out in detail:
http://www.firstusa-credit-suit.us/b...es/000050.html

[calawyer]

Originally Posted by gdouglaslee

If you sign a separate agreement, then yes. But if it is included in any other agreement, then no, it's unenforceable.

Sorry, but you just can't generalize like this. Mandatory arbitration is a very complex area of law and the decisions are in flux. The best legal resource on defeating such provisions is found on the Trial Lawyers for Public Justice website. These folks are GREAT lawyers who have taken arbitration on as a major cause of their organization. Here is a link (click "mandatory arbitration abuse" in the first paragraph):

http://www.tlpj.com/

[admin]

Great link! The information does seem overwhelming. I wish there were a more standard way of doing things.

[calawyer]

You mean a way that you could respond uniformly in each state and know that you are OK? If so, I agree but it will never happen.

I am glad that awareness of mandatory arbitration abuse is getting a voice here. It is something I have been whining about for several years. In my view, it is the single biggest threat to consumers today (or at least tied with the stalled class action "reform" bill).


What can you do as consumers? Not much, but the following would help:

1. Support Trial Lawyers for Public Justice (I am not connected with them in any way. It is just my honest opinion that they are a very talented group of lawyers doing a fantastic job).

2. Refuse to sign agreements with mandatory arbitration clauses. I know this is hard because you really are forced to "agree" sometimes. But if you get a "bill stuffer" or a contract is presented to you with an arbitration clause in it, and you are able to decline, do so and make a big stink about it. Write letters to the company telling them why you won't be doing business with them. Get 'em in the pocketbook.

3. If you have a story about a particularly unfair experience with arbitration, let me know about it here, and write your representatives in Washington. The car dealers all lobbied congress to get an exemption from the FAA because it was so "unfair" to them to have to agree to arbitrate disputes with the manufacturers. See, http://www.kl.com/files/tbl_s48News/...ergarticle.pdf. Far from the "tip of the iceberg" as this article suggests, car dealers are the only group to be exempted from mandatory arbitration. What is that all about????? How about consumers?????

[irishman]

ok

[imjustagoyle]

How do I use that sample letter as it applies to Florida law?

I need to respond to a suit NLT December 31. TIA.

[Donnie]

Does anybody have any cases of refusing arbitration that were held in Michigan? or and Cases that were motioned like this:
DEFENDANT'S MOTION TO DISMISS APPLICATION TO CONFIRM ARBITRATION AWARD, VACATE ARBITRATION AWARD AND FOR STAY OF PROCEEDINGS

Now comes this defendant, [NAME], and respectfully moves this court to dismiss plaintiff's application to confirm arbitration award, vacate arbitration award and for stay of proceedings thereon for the reasons herein:

[calawyer]

New Florida Supreme Court decision striking down an arbitration clause:

http://www.floridasupremecourt.org/d.../sc02-2161.pdf

Again, we have Trial Lawyers for Public Justice to thank for this opinion. You can find the briefs on the organization's website:

http://www.tlpj.org/briefs/buckeye_opening.pdf

[admin]

So basically what they are saying is that you can't enforce arbitration as a separate clause if any part of the rest of the contract is illegal? Interesting.

[calawyer]

Originally Posted by admin

So basically what they are saying is that you can't enforce arbitration as a separate clause if any part of the rest of the contract is illegal? Interesting.

Under Florida law.

[Jackiej]

Originally Posted by Donnie

Does anybody have any cases of refusing arbitration that were held in Michigan? or and Cases that were motioned like this:
DEFENDANT'S MOTION TO DISMISS APPLICATION TO CONFIRM ARBITRATION AWARD, VACATE ARBITRATION AWARD AND FOR STAY OF PROCEEDINGS

Now comes this defendant, [NAME], and respectfully moves this court to dismiss plaintiff's application to confirm arbitration award, vacate arbitration award and for stay of proceedings thereon for the reasons herein:

Ayone have anything for this ?
Im curious also,
and in Michigan

[Donnie]

Hi Jackie,
Has the collection attorneys filed a suit against you? I'm fighting a collection attorneys attemp to enforce their arbitration award and I have some information that I can share with you. Email me at dkoptyra@juno.com if you would like some help.
Donnie

[admin]

Here's a ruling in Maryland court of interest. Now if we could find a federal one...

Click on this link and when you return read the article below.

http://www.nclc.org/about/partners.shtml


TLPJ WINS BATTLE WITH CHEVY CHASE BANK OVER CREDIT CARDHOLDERS’ RIGHT TO SUE FOR EXCESSIVE RATE HIKES

Maryland High Court Rules that Bank Cannot Compel Arbitration

Maryland’s highest court ruled unanimously on March 8 that the plaintiffs in TLPJ’s national class action lawsuit against Chevy Chase Bank cannot be deprived of their constitutional right to a jury trial and their right to bring a class action.

TLPJ filed Wells v. Chevy Chase in February 1999, charging that the bank breached its contracts with credit cardholders by unilaterally raising interest rates above a promised 24 percent ceiling, and imposing new and higher fees. The company’s agreement with its customers provided that it would "never" charge more than 24 percent, but the company did so anyway. In May 1999, Chevy Chase filed a motion to halt the litigation and instead force the cardholders into arbitration.

In August 1999, the trial court compelled the plaintiffs into arbitration, but TLPJ appealed the ruling to Maryland’s Court of Appeals. In the March 8 ruling, that Court reversed the trial court and held that the terms of the cardholder contract that Chevy Chase drafted made it clear that the plaintiffs did not agree that they could be forced to arbitrate these claims. The court held that the cardholders could choose to arbitrate their claims if they wished, but that they could not be compelled to arbitrate in a case like this one where they had chosen to go to court instead.

[Methuss]

The sample letter for refusing arbitration in the first link within this thread has some serious flaws. Basically everything under Section (1) of the letter is complete bunk.

HR 5162 never became law and died in the House in 2002
The Federal Arbitration Act was never amended with S192. It died in committee.
HR 1054 and HR 3607 also died in committee in 2001 and 2002 respectively and never became law.

So basically all the "laws" quoted in the sample letter are vapor-ware. The court cases appear to be OK though.

[admin]

Leave it to Methuss.....

[Methuss]

No one is more disappointed than I.

I was planning on using that info to send out a few letters to snub some of those nasty arbitration clauses. Now I gotta find a different tactic.