"Accidental Arbitration" -- A New Theory that Would Rein in Consumer Arbitration Clauses and the Scope of the FAA

Consumer Finance Monitor

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Our special guest is David Horton, Professor of Law at the University of California, Davis, who has written a creative and thought-provoking article analyzing how courts should interpret certain key provisions that are frequently used in consumer arbitration agreements. The article may be accessed online at SSRN and will be published in the Washington University Law Review later this year.

Prof. Horton first contends that courts have misinterpreted the Federal Arbitration Act (FAA) as requiring arbitration clauses to be construed broadly, which in many cases forces consumers to arbitrate disputes they never agreed to because the dispute is not causally related to the consumer's original transaction with the company. Instead, he argues, courts should be guided by the literal text of the FAA, which limits the statute's application to disputes that "arise out of" the contract containing the clause. Such an approach would narrow the scope of the arbitration clause to disputes that were contemplated by both parties at the time of contracting. Second, Prof. Horton addresses the issue of third parties who are not signatories to the consumer arbitration agreement but are nevertheless defined as "parties" in the agreement. According to Prof. Horton, such "artificial privity" unduly broadens the scope of the arbitration clause because many courts automatically permit the third parties to enforce the agreement without satisfying more rigorous state law requirements for establishing third-party beneficiary status. Third, Prof. Horton argues that arbitrability questions concerning whether a dispute "arises under" the contract and whether a third party properly has enforcement rights should be decided by a court even if the arbitration clause purports to delegate such issues to the arbitrator.

Mark Levin, Senior Counsel in the Consumer Financial Services Group, who helped pioneer the use of arbitration agreements and class action waivers in bank, credit card and other consumer contracts, provides the industry response to each of the arguments asserted by Prof. Horton. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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