Last week, the U. S. Supreme Court heard arguments on CompuCredit Corp. v. Greenwood, 563 U.S. _ (2011). The question presented is whether claims arising under the Credit Repair Organizations Act, 15 U.S.C. § 1679 et seq., are subject to arbitration pursuant to a valid arbitration agreement. Find the transcript of the arguments here. Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1205 (9th Cir. 2010) (opinion below) is here and Docket 10-948 is here. Stay tuned. Related Posts: Court gives short shrift to arbitration foes in predatory credit card dispute, Ronald Mann, SCOTUSblog (Oct. 12, 2011) Supreme Court considers whether ‘right to sue’ means only right to arbitration, Robert Barnes, The Washington Post (Oct. 11, 20211) Does Law Provide a Right to Sue over a $257 Credit Card Fee? Justices Mull the Issues, Debra Cassens Weiss, ABA Journal (Oct. 12, 2011) Technorati Tags: ADR, law, arbitration

We would like to welcome Kluwer Mediation to the blawgosphere! The blog, edited by professor Nadja Alexander and Bill Marsh, will also feature regular collaborators, including: Jeffrey Krivis, Joel Lee, Diane Levin, Geoff Sharp, Rafal Morek, and Machtel Pel. Check out the new Kluwer Mediation Blog here. Technorati Tags: ADR, law, arbitration

In Kolev v. Euromotors West/The Auto Gallery, 2011 U.S. App. LEXIS 19254 (9th Cir. Cal. Sept. 20, 2011) a pre-owned car Diana Kolev (“Kolev”) purchased developed serious mechanical problems during the warranty period and the dealership refused to honor her warranty claims. Kolev sued for breach of warranties under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. Section 2301 et seq., breach of contract, and unconscionability. The dealership moved to compel arbitration pursuant to the mandatory arbitration provision in the sales contract that Kolev signed when she bought the car. The District Court granted the motion. After the arbitrator sided with the dealership, Kolev challenged the ruling in District Court, which upheld the arbitral decision. The U.S. Court of Appeals for the Ninth Circuit , however, reversed the District Court’s decision to compel arbitration. The appellate court found that the statute on its face was ambiguous as to whether pre-dispute mandatory binding arbitration provisions were valid under the MMWA. However, the Court found the written warranty provision that mandated pre-dispute binding arbitration was invalid under the MMWA. The Court explained its conclusion as follows: We do so for the following reasons: (1) the FTC interpreted the statute consistent with its carefully reasoned understand- ing of the enacting Congress’s intent, as evidenced by the statute’s language and legislative history; (2) the FTC’s con- struction advances the MMWA’s purpose to protect consum- ers from predatory warrantors and to provide them with fair and informal pre-filing procedures that preserve their rights to enforce their claims for breach of warranty through civil liti- gation in the state or federal courts; and (3) the persistence of the FTC’s rule that the MMWA bars pre-dispute mandatory binding arbitration — expressly reaffirmed more than a decade after the Supreme Court held that the FAA “mandates enforcement of agreements to arbitrate statutory claims” absent “contrary congressional command — requires that the courts afford the agency’s construction particularly strong deference. Because we are required to defer to the reasonable construction of a statute by the agency that Congress has authorized to interpret it, we hold that the MMWA precludes enforcement of pre-dispute agreements such as Porsche’s that require mandatory binding arbitration of consumer warranty claims.   Technorati Tags: ADR, law, arbitration

We thought that you might find interesting Professor Alan Scott Rau’s latest article, Arbitral Power and the Limits of Contract: The New Trilogy (October 7, 2011). American Review of International Arbitration, Forthcoming. Here is the abstract: The American law of arbitration has for some reason been replete with what we have become accustomed to call “trilogies” – and the last two terms of the U.S. Supreme Court have curiously continued that pattern. Once again the Court has handed us three leading cases on closely-related themes – and these decisions have turned out in fact to be in many ways the most interesting of the lot. (I am referring of course to Stolt-Nielsen, Rent-A-Center, and Concepcion.) All three amount to extended riffs on the Question of Questions – the scope of arbitral power: And so the Court has continued to dip its finger into this rich mixture – compounded of notions of judicial review, “arbitrability,” “separability,” compétence/compétence, and the preemption of state law – all of our hard-earned lore and learning is there. Apparently it is now well beyond the power of arbitrators to hold that “classwide proceedings are permitted,” at least without some pretty special authorization (Stolt-Nielsen) – while it is well beyond the power of courts to hold that they must be – certainly not when the parties have agreed to an arbitral determination (Rent-A-Center), and even when they haven’t (Concepcion). It seems reasonably clear that these cases will continue to generate endless discussion. Undoubtedly for the moment the greatest salience will be with respect to arbitration clauses in contracts of adhesion entered into by consumers and employees – although this recent jurisprudence has the potential of sweeping far more broadly. Things now seem curiously muddled: If our law of arbitration no longer seems to have any clear unifying theme, this suggests that private adjudication – rather than presenting us as it once did us with a coherent and self-contained body of doctrine – has become a hostage to a game played out on a larger stage, a pawn of wider, systemic “political” concerns. Throughout the “trilogy” we have seen much familiar learning yoked to the service of a market-driven political agenda, in the process inevitably becoming warped and almost unrecognizable. And so – yet another untoward result – these cases will require the reevaluation of what seemed, for a while, to constitute comfortably settled certainties. Here is at least one step in that direction. You may download the full article (at no cost) here. Links to other scholarly papers by Professor Rau are here. Technorati Tags: ADR, law, arbitration