A.5240 (Dinowitz)

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The Business Council opposes A.5240 (Dinowitz), which would prohibit mandatory arbitration agreements in consumer and employment contracts.

Arbitration is an important tool benefiting consumers by providing a fair and accessible means for resolving disputes. The Federal Arbitration Act, 9 U.S.C. §2 states that a written provision in a contract providing for arbitration as a means to settle disputes “…shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The United States Supreme Court has consistently ruled that federal and state courts must enforce the Act and “reflects an emphatic federal policy in favor of arbitral dispute resolution’” Marmet Health Care Center, Inc. v. Brown 132 S.Ct.1201 (1202) quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213,217 (1985).

Arbitration enables consumers with grievances to obtain redress for the vast majority of disputes they are likely to have – small, individualized claims for which litigation in court is impractical. It also serves the court system by providing an alternative means of resolution thus freeing up the already overburdened state court system.

Naysayers argue that arbitration clauses threaten due process because consumers are deprived their day in court. In fact, the process of arbitration generally provides a consumer with a forum to obtain redress for actions alleged committed by companies in a fair and expeditious manner without the burden of attempting to navigate the court system.

Many of the “advocates” arguing against the use of arbitration are actually proponents of (and beneficiaries of) class action lawsuits. It is debatable whether class actions provide consumers with better outcomes. It is not uncommon for consumers, as parties to a class action to see results of minimal compensation but generous fees for the attorneys that instituted the litigation. One needs to question whether consumers truly benefit from class action settlements.

The American Arbitration Association (AAA) administers consumer arbitrations and has implemented rules and policies tailored for the resolution of consumers’ and employees’ disputes, which provide basic requirements of procedural fairness and afford strong protections for consumers and employers. If the goal of the legislation is to ensure fairness and accountability, it appears as though a system is already in place thus obviating the need for such legislation.

For these reasons The Business Council opposes A.5240 (Dinowitz).