Consumer Arbitration: A Report From The Future | by George Friedman

First Annual ADR ExecuSummit
Mohegan Sun Resort, Connecticut, June 11 – 12, 2013
Keynote Address: “Consumer Arbitration: A Report
from the Future”
© 2013 by George Friedman, Board Member – Arbitration Resolution
Services, Inc.

Arbitration Resolution Services  Copyright © 2013
A Prediction
“A day of reckoning is coming on predispute arbitration
agreements in consumer arbitration.
“A dichotomy is developing between arms-length pre-
dispute arbitration agreements and those imposed in an
adhesion contract with consumers (and perhaps
employees).
“This will be addressed in the next several years by the
Supreme Court, Congress, the SEC or all.”
- George Friedman –Law Class Lecture at Fordham Law School
…from 2005
2

The Future (2013 - 18)
My bold and fearless predictions for the
future.
You can disagree, but you can’t
definitively say I’m wrong.
Unless you claim to be from the future.
In which case, let’s talk later…
3

The Future (2013 - 18)
And now, let’s go……….
4

The Future (late 2013-18)
5

The Future: headlines from 2013-2018…
2013-5:The new Consumer Financial Protection Bureau
banned PDAAs in many types of consumer financial
contracts, but SRO programs were carved out for the SEC.
2014: FINRA better defined “customer” for arbitration
purposes.
2015: The SEC acted on predispute arbitration agreements
under Dodd-Frank.
2017: The Arbitration Fairness Act was finally enacted (sort
of).
2013-18: The Supreme Court continued its strong support
for arbitration, but this began to shift in 2017.
6

2013-15: Consumer Financial Protection Bureau
banned PDAAs in many types of consumer contracts
 Background: Dodd-Frank established a new Consumer Financial
Protection Bureau, required it to study PDAAs in consumer
contracts (section 1028(a)), and authorized it to limit or ban their
use (section 1028(b)).
 By February 2013, CFPB had already banned PDAAs for mortgages
and home equity loans, as Dodd-Frank mandated.
 Later, CFPB banned PDAAs in many types of consumer financial
contracts:
 Car loans, consumer loans, credit card agreements, payday loans, rent-to-
own contracts
 SRO securities arbitration programs were carved out for the SEC
7

2014: FINRA better defined “customer” for
arbitration purposes
 Anticipating that PDAAs might be banned, FINRA in 2014 clarified its
definition of “customer” for purposes of its Rule 12200.
 This rule allows a customer to require a broker to arbitrate disputes arising out
of the business activities of the broker
 After predispute arbitration agreements were banned -- first by the SEC
in 2015 and later by Congress in 2017 -- FINRA Rule 12200 would
become the investor’s only practical way into arbitration.
 There was a huge battle, with the securities industry saying it was unfair
to let investors “cherry pick” which cases to take to arbitration. It called
for the abolition of Rule 12200.
 In the end, FINRA and SEC stuck to their guns and Rule 12200 stayed.
 The securities industry sued FINRA and the SEC (more on that later) .
8

2015: The SEC acted on predispute arbitration
agreements under Dodd-Frank
 Background: Section 921 amended the Securities Exchange Act
of 1934 and the Investment Advisers Act of 1940 to authorize but
not require the SEC to:
 limit or prohibit use of pre-dispute arbitration agreements (PDAAs)
arising under the Federal securities laws, the rules and regulations
thereunder, or the rules of a self-regulatory organization
 “if it finds that such prohibition, imposition of conditions, or
limitations are in the public interest and for the protection of
investors.”
9

SEC acted on predispute arbitration agreements
under Dodd-Frank (cont’d)
 The Timeline (a/k/a “The Letter of the Month Club”):
 February 2013: Massachusetts's Secretary of the Commonwealth
William F. Galvin urged the SEC to ban PDAAs in brokerage and IA
agreements.
 March 2013: The North American Securities Administrators
Association, the association of state securities regulators, urged the
SEC to act under Dodd-Frank to ban mandatory PDAAs.
 April 2013: SEC Commissioner Luis Aguilar came out against
mandatory PDAAs in brokerage and investment adviser
agreements.
10

 April 2013: Thirty-seven Democratic Senators and House members
urged the SEC to prohibit brokerage firms from requiring customers
to submit to arbitration.
 May 2013: The Public Investors Arbitration Bar Association,
attorneys who represent investors in arbitration, urged the SEC to
ban mandatory PDAAs.
 May 2013: SEC Commissioner Elisse Walter said that the SEC was
unlikely to get to the PDAA issue in 2013.
 February 2014: A consortium of anti-arbitration types produced a
Super Bowl ad featuring….
11

…. Clint Eastwood and an empty chair singing “All we are saying, is
give choice a chance.”
12

…. And this became the group’s logo.”
13

So, here’s what happened:
 SEC studied mandatory PDAAs. It started in 2011 and finished in
2014. The rule went into effect in 2015.
 SEC found that securities arbitration was fair for investors.
 After allowing PDAAs in customer-broker contracts since 1987 (McMahon
and Rodriguez), SEC would have been hard pressed to say securities
arbitration was unfair.
 SEC’s Report to Congress cited everything George Friedman had been
saying for years about fairness of the FINRA forum.
 But the SEC’s 2015 rule provided that “perceptions of fairness dictate
that investors have a choice of forum” – that is, going to court or
arbitration.
 Turns out Commissioner Aguilar knew he had the votes.
14

 So, the rule prohibiting brokerage firms and IAs from using or enforcing
PDAAs in customer account agreements was a one-way street. It
preserved FINRA Rule 12200, which gives customers of brokerage
firms the right to take a dispute to arbitration.
 This immediately spurred litigation initiated by the securities industry
against SEC and FINRA over whether FINRA Rule 12200 violates the
“Takings Clause” of the US Constitution.
 Two years later, the industry challenged whether the Franken-Stein
Arbitration Fair Play Act of 2017 (more on that later) trumped the
SEC’s rule, meaning the investor had no right to require arbitration
with their brokers under FINRA Rule 12200.
 Both matters are still unresolved.
15

2017: The Arbitration Fairness Act was finally
enacted (sort of)
 There were prior failed efforts -- going back at least to 2005 -- to
amend the Federal Arbitration Act (“FAA”) to ban mandatory PDAAs in
consumer, employment, and sometimes franchise contracts and civil
rights claims.
 The FAA – 9 U.S.C. §1 et seq. – is a 1925 federal law enforcing predispute
arbitration agreements and arbitration decisions involving interstate
commerce. It enjoys strong support from the US Supreme Court.
 Even in 2009, when the Democrats controlled the White House and
both houses of Congress (and Barney Frank, an avowed opponent of
PDAAs in consumer contracts, chaired the House Financial Services
Committee), the bills died.
16

The Arbitration Fairness Act was finally enacted (sort of)
 So, here’s what happened:
 AFA was reintroduced in 2013: it was introduced in both houses of
Congress on 5-7-2013 (Franken-S; Johnson –H). Hearings were held. It
failed to get out of committee.
 Reintroduced in 2015: AFA failed to get out of committee.
 Finally in 2017: spurred on by George Friedman’s ground-breaking
compromise proposed in an article published in the Securities Arbitration
Commentator in the summer of 2013, the Franken-Stein Arbitration Fair
Play Act of 2017 was enacted.
– after the Democrats regained control of Congress in the 2016 elections
– over the veto of President Christie
 It amended the Federal Arbitration Act to require that:
17

The Arbitration Fairness Act was finally enacted
(sort of)
 in a consumer contract, any predispute arbitration agreement must be
separately signed or clicked by the consumer;
 a consumer cannot be denied goods or services if the consumer
declines the arbitration option;
 in an employment contract that is not individually negotiated, any
predispute arbitration agreement must be separately signed by the
employee;
 a prospective or current employee cannot be denied employment if
the employee declines the arbitration option; AND
 clear procedural fairness guidelines be followed in any consumer
or employment arbitration.
 To avoid Constitutional challenges, the law was prospective. It applied to
contracts entered into or revised after the effective date, but required that
contracts be revised within two years of the effective date.
18

2013-8: The Supreme Court continued its strong
support for arbitration
 The Supreme Court continued its strong support for arbitration:
 continued erosion of the non-arbitrability doctrine
 supremacy of arbitration clauses over class action participation
 strong support of FAA preemption of state anti-arbitration laws
 even further restrictions on court review of arbitration decisions
 continued impatience with frivolous motions to vacate
 This began to shift in a series of 5-4 decisions after Justice Hillary
Clinton replaced Justice Scalia on the Court in late 2016.
 In 2017 Justice Clinton wrote the majority opinion holding that arbitrators
must apply the law in deciding claims alleging violations of federal statutes
 The Court heard oral argument five years from now in June 2018 in
SIFMA v. SEC and FINRA, a case dealing with the securities
industry’s challenge to FINRA rule 12200.
 I had to head back to 2013 before the case was decided. Sorry
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In conclusion
 Like the scene at the end of Back to the Future III:
“The future hasn’t been written yet.
No one’s has.
Your future is whatever you make it.
So make it a good one.”
 In my case, it turned out joining the Board of Arbitration Resolution
Services was a good move.
 In 2015 I traded in my Chevy Volt for…
20

In conclusion (cont’d)
05/02/2015
21
A Tesla Model S!

In conclusion (cont’d)
See you in the future!
22

Consumer Arbitration: A Report From The Future | by George Friedman

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