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Consumer Arbitration Agreements: 10.7.4.4 Unconscionability Challenges

This subsection considers the unconscionability of unfair mass arbitration procedures imposed on the worker or consumer by either the arbitration provider’s rules or by the arbitration provision itself. A successful challenge to the mass arbitration procedures may result in the entire arbitration provision being invalidated, allowing individual or class claims to proceed in court, or to proceed as a mass arbitration without the unconscionable procedures.

Consumer Arbitration Agreements: 10.7.5.1 General

Businesses faced with a mass arbitration may refuse to pay their filing fees or refuse to participate in the arbitrations. If filing fees are not paid, an arbitration provider typically closes the filed arbitrations.

Consumer Arbitration Agreements: 9.11 Punitive Damages

Case law generally permits arbitrators to issue awards for punitive damages,244 including when arbitrators find a defendant was unrepentant, among other reasons.245 There have been some sizable punitive damage awards in arbitration, including in consumer cases.246

Unfair and Deceptive Acts and Practices: 2.2.3.2 Repossession

A number of decisions hold that repossession practices are within the scope of a UDAP statute that applies to trade or commerce.761 The Tennessee Supreme Court has, however, held that a bank’s sale of a repossessed vehicle did not affect “advertising, offering for sale, lease or rental, or distribution” of goods, services, or other property, so did not fall within the UDAP statute’s definition of trade or commerce.762 The court did not describe its rationale in any detail, and focused primarily