Mark J. Levin

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Recently, the Ninth Circuit Court of Appeals reexamined when use of a website can bind a consumer to hyperlinked “terms and conditions” containing an arbitration provision that the consumer never saw or read.  Affirming the district court, the appeals court held that the plaintiffs in Berman v. Freedom Financial Network, LLC did not enter into a binding agreement to arbitrate because they did not “unambiguously manifest their assent to the terms and conditions when navigating through the [defendants’] websites.”… Continue Reading

Ruling on an important Federal Arbitration Act (FAA) procedural issue that has divided the circuit courts, the U.S. Supreme Court has decided that the “look-through” approach often used in determining whether federal jurisdiction exists to decide motions to compel arbitration filed under Section 4 of the FAA does not apply to motions to confirm or vacate arbitration awards filed under Sections 9 and 10 of that statute. … Continue Reading

A recent blog by Professor Jeff Sovern, occasioned by the recent Senate hearing on consumer arbitration clauses, recycles two of his favorite talking points: (1) consumers don’t understand arbitration clauses, and (2) consumers only benefit from post-dispute, not pre-dispute, arbitration.  We’ve heard it all before, and our previous responses to his earlier iterations of those same arguments have stood the test of time.… Continue Reading

The U.S. Senate passed a bipartisan bill aimed at preventing employers from requiring workers to arbitrate sexual harassment and assault claims.  The bill will now go to President Biden for his expected signature.  Known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,”  the bill will amend the Federal Arbitration Act (FAA) to prohibit enforcement of contract clauses that require arbitration of workplace sexual harassment or assault claims.… Continue Reading

The U.S. Court of Appeals for the Third Circuit recently ruled that the application of Pennsylvania usury laws to auto title loans made to Pennsylvania residents who travel outside of Pennsylvania to obtain such loans does not violate the Commerce Clause of the U.S. Constitution.  The decision could have significant implications for all providers of consumer credit whose operations involve cross-border lending.… Continue Reading

The U.S. House of Representatives has fired another salvo against class and collective action waivers in employment agreements.  The recently passed Build Back Better Act (BBB Act) would amend the National Labor Relations Act (NLRA) to make it unlawful for employers to enter into or attempt to enforce any agreement whereby, prior to a dispute, “an employee undertakes or promises not to pursue, bring, join, litigate or support any kind of joint, class, or collective claim” relating to the employment of such employee in any forum. … Continue Reading

In a recent “open letter” to newly confirmed CFPB Director Rohit Chopra, Professor Jeff Sovern asks the agency not to forget about “arbitration” as it implements its regulatory agenda.  He argues that “[p]re-dispute arbitration clauses remain a serious limit on consumer protection” and can even “blow up their lives.”… Continue Reading

In a recent guest post, Professor Mark Budnitz voiced support for Professor Jeff Sovern’s recent proposal that the CFPB issue a rule barring the use of pre-dispute arbitration agreements unless consumers opt in to them.  He claims it is the “only fair method” for contracting with consumers because “consumers cannot know, pre-dispute, which forum is better.” … Continue Reading

Professor Jeff Sovern responded to our blog criticizing his proposal for a new CFPB arbitration rule by asserting that his proposed rule is not substantially the same as the prior CFPB rule that Congress vetoed and, therefore, the Congressional Review Act would not bar its promulgation.  According to Professor Sovern: “I don’t see how my rule giving consumers a choice to opt in to arbitration clauses, which could include class action waivers, could be substantially the same as the earlier rule which blocked consumers and companies from agreeing to class action waivers.”… Continue Reading

Professor Jeff Sovern recently proposed that the CFPB issue a supposedly “new” arbitration rule “that prevents companies from blocking consumers from suing in court unless consumers specifically opted in to the arbitration clause” after being given a CFPB-mandated disclosure that if they do not sign and their rights are violated, they “may still sue us in court or later agree to arbitration.”  … Continue Reading