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Consumer Arbitration Agreements: 9.9.1 Standards for Submission of Evidence

Arbitrators vary in how closely they follow federal or state rules of evidence but, in general, arbitrators are not interested in strictly complying with rules of evidence. Arbitrators tend to allow into evidence everything that is pertinent, material, and allows for a fair hearing. An arbitrator’s ruling can be overturned if evidence is excluded, and it is rarely overturned because an arbitrator allows too much evidence in. Pertinent and material hearsay is typically allowed.

Consumer Arbitration Agreements: 10.2.4 When Arbitration Agreement Appears to Prohibit Class Arbitration

An arbitrator, faced with an agreement explicitly prohibiting class arbitration, will not interpret the contract as allowing class arbitration. If an arbitrator were to do so, a reviewing court could vacate such an award as exceeding the arbitrator’s powers.63 A consumer wishing to bring a class action faced with such a clause has little option but to attack the arbitration agreement as a whole as unenforceable.

Consumer Arbitration Agreements: 10.3.1 Importance of the Arbitration Forum

Most arbitration agreements designate one or more arbitration forums, such as the American Arbitation Association (AAA) or JAMS. Arbitration forums establish rules, receive requests for arbitration, compile an arbitration panel, present potential arbitrators to the parties, and otherwise administer the arbitration. Class arbitration will proceed according to the rules of the forum designated in the arbitration agreement.

Consumer Arbitration Agreements: 10.4 Limited Judicial Review of Arbitrator’s Certification Award

Typically, there will be three different awards in a class arbitration. The first, which was the subject of Stolt-Nielsen S.A. v. AnimalFeeds International Corp.,102 is an award construing whether the arbitration agreement allows class arbitration—issued either by an arbitrator or a court. The second is an award deciding whether to certify the class. Only the third award reaches the merits of the case.

Consumer Arbitration Agreements: 11.1 Overview

This chapter deals with judicial review and the effect of the arbitration award, assuming the agreement makes the arbitration award binding. Some forms of informal dispute resolution are not binding on the parties. For example, another NCLC treatise deals with informal dispute resolution procedures complying with the Federal Trade Commission’s Magnuson-Moss Warranty Act rules or state lemon laws.1 In those forms of dispute resolution, a dissatisfied consumer can typically bring a new action in court.

Consumer Arbitration Agreements: 11.2.1 The Proper Court

There are narrow grounds to establish federal court jurisdiction for an action to confirm, vacate, or modify an arbitration award. The action must present an independent basis for federal jurisdiction other than the Federal Arbitration Act (FAA). Even though the FAA specifies federal court procedures to be used to confirm, vacate or modify an award, those FAA provisions do not establish, on their own, federal court jurisdiction to pursue such a proceeding.11

Consumer Arbitration Agreements: 11.2.3.1 Short Period to Vacate or Modify an Award

In most cases, actions to vacate or modify an award must be brought immediately after an award is issued. If, instead, a dissatisfied party waits to defend the prevailing party’s attempt to confirm the award, the dissatisfied party may lose the ability to challenge the award.

The FAA, the UAA, and the revised UAA require a party to apply to vacate or modify an arbitration award within ninety days (three months in the case of the FAA) after delivery of a copy of the award to that party.49

Consumer Arbitration Agreements: 11.3 Grounds to Modify or Correct an Award

Federal and state law allow either party to ask a court to modify or correct an arbitration award, which means asking the court to change the size or nature of the award. The Uniform Arbitration Act (UAA) and revised UAA explicitly state that, if the court agrees to modify the award, the court shall then confirm the award as modified. If the court refuses to modify the award, then the court shall confirm the award as issued.125 In neither case does the matter go back to the arbitrator or require a separate confirmation proceeding.

Consumer Arbitration Agreements: 11.7.1 Introduction

Consumers can recover punitive damages in an arbitration proceeding unless the arbitration agreement or the arbitration service provider’s rules explicitly restrict such recovery. Such restrictions are not common, and if found would serve as a basis to challenge the enforceability of the arbitration agreement.328

Consumer Arbitration Agreements: 11.8.1 Introduction

The law of collateral estoppel and res judicata (also often called issue and claim preclusion) is well developed, and typically deals with the preclusive effect of a prior court proceeding on a later court proceeding. Special issues are raised as to an arbitration proceeding’s preclusive effect on a court proceeding or the preclusive effect of either an arbitration or court proceeding on a subsequent arbitration proceeding. For example, an arbitration proceeding may interpret a contract.

Federal Deception Law: 6.2.1 Purpose; Liberal Construction

Congress enacted the TCPA in 1991.13 When it enacted the statute, Congress made findings that automated calls and prerecorded messages are a “nuisance,” an “invasion of privacy,” and “when an emergency or medical assistance telephone line is seized, a risk to public safety.”14 The legislative history also shows a strong concern by Congress to provide a means of individual redress for wrongs inflicted by the undesirable business practices at issue.15 The

Federal Deception Law: 6.2.2 General Scope of the TCPA; Comparison to the FTC’s Telemarketing Sales Rule (TSR)

Since telephone lines are part of an aggregate interstate system even when used for intrastate calls, Congress has authority to regulate intrastate calls.18 Accordingly, the TCPA applies to both interstate and intrastate calls.19 In this regard, the TCPA is broader than the FTC Telemarketing Sales Rule (TSR), which applies only to telemarketing campaigns that involve more than one interstate call.20 The prohibitions in section 227(b)(1), which include th

Federal Deception Law: 6.2.3 Preemption

The TCPA does not occupy the field of robocall regulation.33 It provides that it does not preempt state laws that impose more restrictive intrastate requirements on, or that prohibit, junk faxes, autodialers, artificial voice messages, or telephone solicitations.34 The Seventh Circuit has given this language its plain meaning and held that it leaves states free to restrict or prohibit both intrastate and interstate artificial voice ca

Federal Deception Law: 6.3.1 Nature and Scope of the Prohibition

Unless the called party has given prior express consent, the TCPA prohibits using an automatic telephone dialing system or an artificial or prerecorded voice to make any call to (1) an emergency telephone line,97 (2) a patient or guest room at a nursing home, hospital, or similar health facility, (3) a pager or cellular phone, or (4) any telephone service for which the called party is charged for the call.98 The statute and regulations have been upheld against variou

Federal Deception Law: 6.3.4.2 Analyzing a Dialer’s “Capacity”

The TCPA’s requirement of consent for calls made with an ATDS does not focus on how the device produced, stored, or dialed the particular telephone number that was called, but rather requires that the device have the “capacity—(A) to store or produce numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”175

Federal Deception Law: 6.3.4.3.1 A predictive dialer is likely to use a random or sequential number generator to store or produce telephone numbers to be called

Most pre-Facebook interpretations of the role of a random or sequential number generator in the ATDS definition focused on whether the resulting telephone numbers themselves were random or sequential numbers. However, when read carefully, the statutory definition does not include such a requirement. The definition only requires that the device use a random or sequential number generator to store or produce telephone numbers to be called. In other words, the numbers that are randomly or sequentially generated need not be the telephone numbers themselves.