Leveling the legal playing field: Limit forced arbitration

Odds are you've signed at least one contract with a forced arbitration clause in the fine print. They are showing up everywhere from credit card contracts to the Instagram terms of use. Above: Instagram co-founder Kevin Systrom at a press conference in New York on Dec. 12.

Imagine the Dodgers have just won the pennant and are going to play the Yankees in the World Series. But the rules have changed: All games will be played in Yankee Stadium. And there are new umpires, hired and paid by the Yankees. With rules like that, the Dodgers wouldn’t stand much of a chance.

Thanks to bad decisions by the Supreme Court and to unfair corporate practices, Americans are facing the same kinds of unfair rules. But this is no game. They may face those rules when they’ve been defrauded by a business or discriminated against by an employer.

Fortunately, this is one problem Congress can solve — and legislation has been introduced to do just that.


At the root of these injustices is forced arbitration. This practice turns dispute resolution into a privatized system of dispute suppression that is supplanting our justice system and letting corporations ignore laws that protect consumers and workers.

Odds are you’ve signed at least one contract with a forced arbitration clause in the fine print. They are showing up everywhere, from credit card contracts to the Instagram terms of use.

Under forced arbitration, if the company cheats you, you can’t go to court to stand up for your rights. Instead, you go before an arbitrator often hired — and paid — by the company you think cheated you. As The Times’ columnist David Lazarus wrote last year, arbitrators “tend not to bite the hand that feeds,” and one study found they rule for big business 94% of the time.

And that’s not the only reason the odds are against you in forced arbitration:

• Filing fees often are higher in arbitration than in court; that can discourage individuals from suing, particularly over relatively small dollar amounts.

• Rules of discovery are fashioned by the arbitration firms and the businesses that hire them, which affects how much information you can obtain from the firm that you think cheated you.

• It’s almost impossible to appeal an arbitrator’s ruling.

• Proceedings are secret. Corporations can prevent negative publicity and avoid emboldening others to bring legal action.


• Arbitration clauses generally prohibit class-action suits. When millions are cheated out of relatively small amounts per person, it isn’t feasible for each one to go through arbitration to get the money back. The only hope for justice, and the only real deterrent to fraud, is a class action.

But in case after case, the Supreme Court has upheld forced arbitration. That’s consistent with a recent study finding that five current justices rank in the top-10 most pro-business justices to serve in the last 65 years — and Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. rank first and second.

In 2013, when a California restaurant tried to sue American Express over monopolistic fees, the court upheld a forced arbitration clause prohibiting the restaurant from banding together with other merchants, even though the credit card company admitted this would leave small businesses with no recourse.

As Justice Elena Kagan wrote in dissent, the majority’s message to wronged small businesses boiled down to “too darn bad.” The restaurant owner has taken his fight to Congress, telling a Senate committee that he is “trying to level the playing field for all small-business owners.”

The Consumer Financial Protection Bureau may bar forced arbitration in consumer services contracts. But forced arbitration, and with it the ban on class actions, is spreading to employment contracts, threatening workers’ ability to sue over race, sex or age discrimination and other workplace injustices. The rights protected by some of our most treasured statutes hang in the balance. The Civil Rights Act, the Equal Pay Act and the Age Discrimination in Employment Act are just three of the landmark laws placed at risk when powerful corporations and employers can opt out of them by forcing consumers and employees into arbitration.

But there is a solution: The Arbitration Fairness Act, now pending in Congress, would bar forced arbitration in employment, antitrust and civil rights cases as well as consumer disputes. It would reopen the courthouse doors to millions of Americans. In other words, it would put real umpires back on the playing field.


Nan Aron is president of Alliance for Justice, a national association of more than 100 progressive organizations.