Talk:Arbitration in the United States/Archives/2015

Timeliness and the Non-Existence of Arbitration Agreements

User:Elvey recently reverted my removal of the section "Timeliness and the Non-Existence of Arbitration Agreements". The entire section relies on legal cases, which are primary sources. In violation of WP:PRIMARY, which states "Any interpretation of primary source material requires a reliable secondary source for that interpretation," the section contains numerous examples of original legal research interpreting the cases cited, such as

• "Texas is particularly consumer-unfriendly in this respect. In that state, not only does the time limit apply, no matter on what grounds you dispute the award, but even if you are within the three month time limit, '[t]he nonexistence of an arbitration agreement is not one of the grounds upon which an arbitration award may be vacated under the FAA,' effectively allowing anyone in Texas to unilaterally file arbitrations against anyone else, contract or no contract, and the other party who did not want to arbitrate is left without recourse." (citation omitted)
• "Missouri takes a slightly more consumer-friendly approach, but still largely favors proponents of arbitration."
• "However, neither of these cases [from the First Circuit] specify whether or not the opponent to the arbitration has the burden of proof, like in Missouri."

The section is entirely unencyclopedic. In addition, the devotion of three paragraphs of the article to time limits for vacating arbitration awards is WP:UNDUE weight. Further, without a secondary source discussing the effects of various cases concerning the timeliness of a motion to vacate, it is doubtful that WP:NPOV is satisfied. I plan to remove the section as it appears in the article now (without prejudice to reinsertion upon sufficient improvement). RJaguar3 | u | t 17:23, 5 April 2015 (UTC)

The more basic problem is that this whole article treats arbitration (no matter the source, the subject, the jurisdiction) as fungible goods. Labor arbitration is not the same as consumer arbitration. The article is severely flawed. There is nothing wrong with reporting this state-by-state, but it has to be sorted out with an explanation. 7&6=thirteen (☎) 22:36, 5 April 2015 (UTC)

Concur with both of you. --Coolcaesar (talk) 05:12, 6 April 2015 (UTC)

As I said, I don't think this is OR as defined at WP:OR. Here's what I mean, in more detail: Reporting what reliable primary sources say and interpreting what they say are two different things. The latter is not allowed. The former is allowed. The section is indeed in need of work. Deleting it entirely is not constructive, however. User 7&6 says "There is nothing wrong with reporting this state-by-state"; Coolcaesar concurs. I would welcome edits that shift the text of "Timeliness and the Non-Existence of Arbitration Agreements" toward "explanation" and away from "interpretation", and/or shorten (but do not remove) it, per WP:UNDUE. Be bold.--Elvey^(t•c) 17:46, 6 April 2015 (UTC)

I concur that it should be and probably can be fixed if restated as a more balanced treatment, but the burden is on you and you alone as the editor pushing that text to rewrite it and get some proper sources so it complies with Wikipedia core content policies and doesn't look like an egregious violation of WP:NOR, WP:NPOV, WP:V, etc. It's not anyone else's problem. Like the few other lawyers who bother to edit Wikipedia, I have more important priorities like fixing Law of the United States and Insurance policy. Fix it, or it goes. --Coolcaesar (talk) 07:11, 8 April 2015 (UTC)

No. I'm not "the editor pushing" the text. I didn't originate it. Get your facts straight, mister. I'm defending it. Please chill out and don't throw things like "WP:NOR, WP:NPOV, WP:V, etc" with no explanation as if they're loaded weapons; they're blanks. You should know better. I said, Deleting it entirely is not constructive. Please respond to that. I said, Reporting what reliable primary sources say is allowed. Please respond to that. --Elvey^(t•c) 19:30, 8 April 2015 (UTC)

Dear Editors:
Chill. Let's try to come up with a strategy that fixes the problem, instead of fixing the blame. Discuss the article, not each other. Please, in the name of Jimbo. May Wikipedia be praised. 7&6=thirteen (☎) 19:42, 8 April 2015 (UTC)

Applebee's "source"

The text "(See Applebee's)" appeared as a source for the statement "However arbitration clauses have been upheld repeatedly as well." I removed it because it is unclear what reliable source (if any) is being referred to. I speculate it may have something to do with the text in the paragraph in the Applebee's article I removed a year and a half ago. Regardless, there should certainly be a much better source for this (to the extent that the statement needs a source as a statement likely to be challenged post-Concepcion). RJaguar3 | u | t 05:40, 20 April 2015 (UTC)

Citation and fact removal - Arbitration Agreements do get ruled unconscionable

Valid citations should not be removed when it leaves a sentence/section with no valid citations, as RJaguar3 did here. Fixed. An unfortunate (inadvertent?) interim result was that the article was then whitewashed of the well-cited fact that Arbitration Agreements do get ruled unconscionable. --Elvey^(t•c) 18:05, 6 April 2015 (UTC)

@Elvey: In the cases referred to, the arbitration agreements were not enforced, but not on grounds of unconscionability (Douglas did discuss the district court's analysis of unconscionability under pre-Concepcion law in dicta as an alternative basis for its decision to compel arbitration being clearly erroneous). In Douglas v. United States District Court, the plaintiff entered into a contract with AOL which was then sold to Talk America. Talk America introduced an arbitration clause by posting on a webpage that plaintiff never saw. The Ninth Circuit held that plaintiff never received actual or constructive notice of the revised terms and therefore could not agree to be bound by them. [1] In Harris v. Blockbuster Inc., the court found that defendant's contract, in which it reserved the right to unilaterally make changes that would be effective upon posting to the website, was illusory, and therefore, the contract, including the arbitration clause, could not be enforced. [2] I do think that coverage of unconscionability as applied to arbitration agreements is necessary for this article, but it should rely primarily on secondary sources (see Consumer arbitration#Unconscionability as a defense for an example of how it might be written). I also think that the misinterpretation of Douglas and Harris exemplifies why original research based on primary source cases does not comport with Wikipedia's policies, including WP:V and WP:NOR, and is therefore inappropriate for this article. RJaguar3 | u | t 01:56, 10 April 2015 (UTC)

No. Yes, "The Ninth Circuit held that plaintiff never received actual or constructive notice of the revised terms and therefore could not agree to be bound by them"... and because of that, found them unconscionable. It's clear in a plain reading of the decision. Reread it. Swap in secondary sources if you like; they are preferred. --Elvey^(t•c) 21:53, 10 April 2015 (UTC)

In any case, is it clear that valid citations should not be removed as you did? --Elvey^(t•c) 21:53, 10 April 2015 (UTC)

@Elvey: When I removed the Douglas and Harris citations, I was under the impression (as emphasized by Eric Goldman's coverage of the cases) that the cases dealt with contract formation, not unconscionability. My research in writing the talk page comment showed that I was at least partially wrong with respect to Douglas (I checked Harris again and it doesn't mention unconscionability). I still think it's probably better to rewrite the unconscionability section from scratch using secondary sources, as I alluded to the section I wrote for the consumer arbitration article. A section based on secondary sources relies on published interpretations of cases, as opposed to Wikipedia editors' interpretation, and also is more likely to satisfy WP:NPOV. RJaguar3 | u | t 15:40, 11 April 2015 (UTC)

EDIT, also the Douglas court found that Douglas's lack of actual or constructive notice, in and of itself, meant that Douglas could not accept the amendments and the amendments were therefore unenforceable: "The district court thus erred in holding that Douglas was bound by the terms of the revised contract when he was not notified of the changes. The error reflects fundamental misapplications of contract law and goes to the heart of petitioner’s claim. It would alone be sufficient to satisfy the third Bauman factor..." RJaguar3 | u | t 15:43, 11 April 2015 (UTC)

The Douglas court found that "...the new [arbitration] terms probably would not be enforceable in California because they conflict with California's fundamental policy as to unconscionable contracts." I already said, "Swap in secondary sources if you like; they are preferred." In the meantime, I think it's OK to remove the Harris citation. --Elvey^(t•c) 14:51, 14 April 2015 (UTC)

I concur with RJaguar3's reading of Douglas. Elvey is clearly confusing the holding of Douglas with dicta and needs to work on mastering the art of close reading. The court's holding is that the revision to the contract is unenforceable for lack of adequate notice of the revised terms; the court marks that as its holding by saying that alone is sufficient to satisfy the third Bauman factor. The court then marks its subsequent discussion of unconscionability as a hypothetical (meaning it is obiter dicta) with the transition word "probably" and again with the adjective "assuming" (in the later parenthetical). Thus, it is difficult to see how one could argue in good faith that Douglas directly supports the proposition that "Arbitration clauses of companies such as Blockbuster, AT&T, and Talk America have been ruled unconscionable and, therefore, unenforceable." --Coolcaesar (talk) 05:48, 16 April 2015 (UTC)

I've edited the article accordingly. Whoever originally added the Douglas and Harris citations may have been right to add them, but they don't support the current text, so I removed them. I get that holdings and dicta are not the same and that technically the unconscionability issue wasn't reached; that's why I quoted the ruling and have now edited accordingly. I do think that Douglas clearly supports the contention that the court stated that AOL/Talk America's "[arbitration] terms probably would not be enforceable in California because they conflict with California's fundamental policy as to unconscionable contracts." Agreed? Thanks for talking this through. At least now the article hasn't been whitewashed of the fact that Arbitration Agreements do get ruled unconscionable.--Elvey^(t•c) 20:02, 17 April 2015 (UTC)

The problem is that you are viewing the issue as if such agreements could still be ruled unenforceable on the basis of unconscionability. While that was true in the past, after Concepcion, it's much more rare that such rulings will be upheld on appeal. The article needs to be adjusted to make it clearer that (1) here is what was true in the past (i.e., they have been ruled unconscionable under state law), (2) but, the Supreme Court clamped down hard in Concepcion and now all those old rulings are probably no longer valid (to the extent preempted by federal law). --Coolcaesar (talk) 01:20, 27 April 2015 (UTC)

AAA Yearbook and In re Checking Account Overdraft Litigation

I removed a source that appeared to be used to cite several banks' arbitration clauses as being ruled unconscionable. The source referred to the District Court's September 2011 decision in In re Checking Account Overdraft Litigation. Appeals were taken from the decisions, and several of the cases were reversed. Buffington v. SunTrust was reversed in a March 2012 unpublished opinion by the 11th circuit, which held a loser-pays fee-shifting provision and a set-off provision that could applied to enforce an arbitration award in favor of the bank were not unconscionable under Georgia law. Powell-Perry v. Branch Banking & Trust Co. was also reversed in a July 2012 unpublished opinion which held a fee-shifting provision was unconscionable under North Carolina law but severable, and a set-off provision was not unconscionable because North Carolina law explicitly authorized set-off. In Barras v. Branch Banking & Trust, the 11th circuit in a July 2012 published opinion held that a clause requiring a bank customer to pay the bank's attorney's fees in a legal dispute, regardless of the outcome, was unconscionable, but that provision was severable from the arbitration clause. In Given v. M&T Bank, the district court found that the claims brought by the plaintiff were excluded from the scope of the arbitration clause and therefore declined to address unconscionability. The 11th circuit reversed, holding that the arbitration agreement required an arbitrator, not a court, to determine whether the plaintiff's claims were within the scope of the arbitration clause. In Hough v. Regions Financial, the 11th circuit, in a March 2012 published opinion, held that a one-way loser-pays fee-shifting clause in favor of the bank was not unconscionable under Georgia law. RJaguar3 | u | t 06:01, 20 April 2015 (UTC)

Yes, I see that in Hough v. Regions Financial, the 11th circuit held that a clause was not unconscionable under Georgia law because to be unconscionable under Georgia law, a contract must be “so one-sided” that “‘no sane man not acting under a delusion would make and that no honest man would’” participate in the transaction. Likewise in SunTrust. So perhaps we need to say that unconsionability of arbitration clauses is defined on a state-by-state basis. Do you have any evidence that the cases against U.S. Bank, Bank of America , or Citibank were reversed? If not, I think the claims and source remain verifiable and valid, respectively. See, e.g. http://www.bank-overdraft.com/cases/bofa.htm, http://www.bank-overdraft.com/cases/usbank.htm, http://www.bank-overdraft.com/cases/jpmorgan.htm, ... --Elvey^(t•c) 00:34, 21 April 2015 (UTC)

The actual text of the case is here. There do not appear to be any rulings against U.S. Bank, BofA, or Citibank in that opinion. The court never actually ruled against those defendants on arbitration issues. Which means the case does not support the assertion for which it is cited. --Coolcaesar (talk) 01:13, 27 April 2015 (UTC)

Unconscionability of AT&T's clause

User:Elvey reintroduced AT&T as a company whose clause was ruled unconscionable. The cited source (Huffington Post) does not list the AT&T clause as having been unconscionable; it serves only as a source that the clause in Chavarria v. Ralphs Grocer Co. was unconscionable. Additionally, the inclusion of AT&T in the list is highly misleading. Although clauses of AT&T's predecessors were found unconscionable in several cases (Ting v. AT&T (9th Cir. 2003), Kinkel v. Cingular Wireless (Ill. 2006), T-Mobile USA v. Laster (cert. denied 2008, Andrew Pincus took the unusual step of filing a brief opposing certiorari because he said that a fairer arbitration clause would make a better vehicle)), AT&T Mobility's clause was upheld by the Supreme Court in Concepcion, and secondary sources (including ) have characterized the clause as being exceptionally consumer-friendly. RJaguar3 | u | t 03:16, 22 April 2015 (UTC)

Concur. Concepcion is on point. AT&T and predecessors may have had losses in the past, but it's clear from Concepcion that they're learning from their mistakes. --Coolcaesar (talk) 01:06, 27 April 2015 (UTC)