Arbitration

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We recently wrote about the new policy statement issued by the Securities and Exchange Commission (SEC) “that the presence of an issuer-investor mandatory arbitration provision will not impact decisions whether to accelerate the effectiveness of a registration statement under the Securities Act.” This reverses the agency’s previous position that it would not use its authority to accelerate the effective date of a company’s registration statement when the company’s governing documents contained a mandatory arbitration provision covering disputes under the federal securities laws.… Continue Reading

Citing a host of recent U.S. Supreme Court rulings interpreting the Federal Arbitration Act (FAA), the Securities and Exchange Commission (SEC) has “determined that the presence of an issuer-investor mandatory arbitration provision will not impact decisions whether to accelerate the effectiveness of a registration statement under the Securities Act.” This new policy statement reverses the agency’s previous position that it would not use its authority to accelerate the effective date of a company’s registration statement when the company’s governing documents contained a mandatory arbitration provision covering disputes under the federal securities laws.… Continue Reading

Today’s episode of the Consumer Finance Monitor podcast is centered around a novel and thought-provoking article by David Horton, a professor of law at the University of California, Davis. The article, titled “Do Arbitrators Follow the Law? Evidence from Clause Construction, “dives into the intriguing question of whether arbitrators render decisions that align with judicial rulings.… Continue Reading

On behalf of the American Bankers Association (ABA) and the Consumer Bankers Association (CBA), Ballard Spahr has submitted an amicus brief to the United States Supreme Court in Coinbase, Inc., et al. v. Kramer, et al., No. 24-1230.  The amicus brief was filed in support of a petition for a writ of certiorari filed by Coinbase which asks the Court to clarify the scope of Federal Arbitration Act (FAA) preemption when California plaintiffs seek public injunctive relief under the “McGill rule” but only a fraction of the general public (typically customers of the defendant) would benefit from the issuance of any such relief.… Continue Reading

Effective May 1, 2025, the American Arbitration Association (“AAA”) amended its Consumer Arbitration Rules, including Rule 12 dealing with the registration of consumer arbitration clauses.  The AAA stated that its goal was to “clarify” the rules in order to maintain “fairness” and “transparency.”  Nevertheless, the recent Eleventh Circuit in its opinion Merritt Island Woodwerx, LLC v.… Continue Reading

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.… Continue Reading

We are very pleased to report that the CFPB has denied a Petition for Rulemaking filed by a group of consumer advocate organizations that would prohibit the use of pre-dispute arbitration clauses in consumer contracts in favor of arbitration clauses that would permit consumers to choose between arbitration and litigation only after a dispute has arisen. … Continue Reading

Earlier this week, the CFPB issued a proposed rule.  Among other things, the proposed rule would “forbid covered persons from including in their consumer contracts any terms or conditions that purport to waive substantive legal rights and protections” or that “reserve to the covered person the right to unilaterally amend a material term of the contract.” … Continue Reading

We previously wrote about a California federal district court decision in Heckman v. Live Nation Entertainment that denied Ticketmaster’s motion to compel arbitration of Sherman Act antitrust claims based in large part on the bellwether procedures for mass arbitration claims set forth in the company’s arbitration clause.  That decision has now been affirmed by the Ninth Circuit Court of Appeals.… Continue Reading

The CFPB has banned private dispute resolution platform Ejudicate from arbitrating disputes about consumer financial products, saying that the company had misled student borrowers about the company’s neutrality and initiated sham arbitration proceedings.

The CFPB said that Ejudicate initiated those proceedings on behalf of the company Prehired—a firm which was shut down in 2023 by the CFPB and several state attorneys general, in part on the grounds that its income share agreements were illegal loans and its income share agreement program involved illegal lending practices.… Continue Reading