Skip to main content

Search

Consumer Arbitration Agreements: § 12. Notice of motions to vacate or modify; service; stay of proceedings

Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court.

Consumer Arbitration Agreements: § 13. Papers filed with order on motions; judgment; docketing; force and effect; enforcement

The party moving for an order confirming, modifying, or correcting an award shall, at the time such order is filed with the clerk for the entry of judgment thereon, also file the following papers with the clerk:

(a) The agreement; the selection or appointment, if any, of an additional arbitrator or umpire; and each written extension of the time, if any, within which to make the award.

(b) The award.

Consumer Arbitration Agreements: § 16. Appeals

(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

Consumer Arbitration Agreements: 8.2.1 Introduction

This section provides a brief overview of Federal Arbitration Act (FAA) preemption as applied to unconscionability, effective vindication of federal statutory rights, and impossibility. Much more is said about FAA preemption in Chapter 3, supra, particularly as it relates to unconscionability.

Consumer Arbitration Agreements: 8.2.2 FAA Preemption and Unconscionability

Section 2 of the FAA states that arbitration clauses are enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.”8 The Supreme Court has stated that arbitration clauses may be voided under state law, but only on grounds that would generally apply to any contract provision.9 The application of principles of unconscionability therefore is not generally preempted or otherwise foreclosed by the FAA.10

Consumer Arbitration Agreements: 8.2.3 FAA Preemption and the Vindication of Federal Statutory Rights

The courts have to apply the FAA slightly differently when considering the doctrine that arbitration provisions should not prevent the vindication of federal statutory rights. This doctrine is not based on state law rulings, but on the fact that arbitration is preventing the vindication of individual rights under federal statutes. The FAA does not preempt other federal statutes. Instead, the court must resolve the conflict between the federal statute and the FAA.

Consumer Arbitration Agreements: 8.5.1 Sources of Unconscionability Law

The doctrine of unconscionability is found in Uniform Commercial Code (UCC) Articles 2 and 2A covering the sale or lease of goods, and is also found in a number of consumer credit, deceptive acts or practices (UDAP), and other statutes. Courts will also adopt those unconscionability concepts for use in other types of transactions.

Consumer Arbitration Agreements: 8.6.1.2 Is a Contract of Adhesion Always Procedurally Unconscionable?

In California the mere fact that a contract is a contract of adhesion is sufficient to render it procedurally unconscionable to at least some degree99 (although the Ninth Circuit has at times suggested that, on its own, this factor establishes a low degree of procedural unconscionability).100 Courts applying the law of several different states similarly have found procedural unconscionability based on the factual circumstances surrounding a contract of adhesion, particularly when the part

Consumer Arbitration Agreements: 8.6.2.3 Complexity and Ambiguity of the Terms

Courts look at how the arbitration clause is presented within the contract and whether any of the contract’s terms or the course of dealing between the parties might create confusion120 or present arbitration in too favorable of a light.121 Some courts give special consideration to the important nature of the rights being waived and whether their waiver is within the consumer’s normal expectations.122 When finding an arbitration clause procedurally

Consumer Arbitration Agreements: 8.6.2.5 Importance of a Factual Record

Surprise as a factor in finding procedural unconscionability inherently depends on specific facts, and consumer lawyers are advised to build as full a factual record as possible about the manner in which an arbitration clause was communicated to their clients. When applicable, produce testimony from clients demonstrating that the clients did not know that they were waiving their constitutional rights.

Consumer Arbitration Agreements: 8.7.1.2 General Concepts As to Substantive Unconscionability

Courts have identified a remarkable number of terms that may be substantively unconscionable.162 Parties will usually not get far, however, with challenges that are based upon differences between arbitration and court that are intrinsic to the less formal nature of arbitration.163 For example, the inclusion of a class action waiver is unlikely to be relevant to the analysis of substantive unconscionability.

Student Loan Law: 10.6.2.5.2 Process for certain Corinthian borrowers

The Department previously created a streamlined borrower defense process for certain Direct Loan borrowers who attended a Corinthian school—Heald College, Wyotech, or Everest College—with a first date of attendance between July 1, 2010, and September 30, 2014. Under that process, borrowers who attested that they had relief on specific job placement misrepresentations and attended specific programs at particular campuses during certain time periods could use a shortened form to apply for relief.