Companies that include arbitration agreements in online terms and conditions may want to take note of a recent Ninth Circuit opinion that refused to enforce an arbitration agreement on lack-of-consent grounds even though the arbitration agreement contained an opt-out provision.
In Berman v. Freedom Financial Network, LLC, the Ninth Circuit affirmed the district court’s
Arbitration agreements have become a fixture of American contracts, and companies have turned to them as a strategy for reducing class action exposure. In recent years, plaintiffs have responded by initiating “mass arbitrations” – individual arbitrations filed on behalf of hundreds or thousands of customers or employees, which may immediately threaten companies with millions of dollars in arbitration-initiating fees alone. Many companies, however, have been slow to react to the risks posed by mass arbitration. This post discusses some of those risks, the difficulties companies have encountered in trying to address this issue, and potential strategies for mitigating the threat posed by mass arbitration.
Continue Reading A Closer Look: Avoiding a “Mass”-ive Arbitration Problem
Last year, in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), the Supreme Court confirmed that every class member must have Article III standing to recover damages in a class action. As we have previously written, the Court’s decision – summed up as “[n]o concrete harm, no standing” – presents major obstacles to plaintiffs asserting class claims based on “bare procedural violation[s]” of statutes. But Ramirez left unanswered some important questions about class action standing, and we offer some thoughts here on what the answers are likely to be.
Continue Reading A Closer Look: Standing at Class Certification After TransUnion v. Ramirez