While the Concepcion decision was read in such a way as to exclude most unscrupulous challenges from employment arbitration, there is another line of argument by which some have invalidated the waiver of the right to class or class action. This is the argument that the prohibition of collective actions would nullify the applicants` material legal rights. At the Conservative Political Action Conference in early March, President Trump assured that he would already be attentive to the best interests of American workers. Bland sees the Trump administration`s attitude on workers` rights darker, but he is convinced that Republicans could support this bill. “Republican voters are very suspicious of corporate power and elites. One of the things President Trump was able to do with incredible success in his election campaign was to run as if he were an anti-corporate figure,” he says. One of the things that becomes clearer and clearer over time is that by rallying Republican voters, they are very much in favor of abolishing forced arbitration. Bland says mass arbitration claims could be a way to turn the tide against successful and powerful companies. “Most people disappear, but if workers` lawyers are able to register and lawyers on behalf of a large number of people, then you can start turning the huge cost of arbitration against employers.” The other arbitration currently before the Supreme Court concerns the ability of a state court to interpret arbitration clauses. It was generally accepted that contract law was a matter of national law and that it was for national courts and not federal courts to interpret contracts. In an arbitration proceeding for consumers who waive a class action called DIRECTTV, Inc. v.
Imburgia, an arbitration clause stated that, notwithstanding the arbitration clause, “however, if your state`s right to waive class arbitration was not applicable, [the entire section requiring arbitration] would not be applicable.” 30 The case took place in California at a time when class actions were found to be unenforceable in consumer contracts as they exist in that contract. As a result, the State Court refused to impose a waiver of the class action. The Supreme Court has agreed to a review to determine whether the state`s interpretation of the treaty conflicts with the FAA and should therefore be overturned. She believes the Epic decision allowed employers to compel workers and consumers into individual arbitration and prevent the class action. The lawyers responded in the same way. “It`s changed our practice by often taking companies at their word and submitting cases to individual arbitrations,” she explains. While the CFP`s potential actions in the area of consumer finance contracts could have a major salutary effect, it is important to identify the limits of its competences. The CFP measures would not cover employment contracts. Nor does it extend to other types of consumer contracts. Therefore, while mandatory arbitration clauses could disappear from credit card agreements, they would still exist in contracts for restaurant employees, software purchase contracts, medical services contracts, uber driver agreements, and many other agreements that affect American consumers and workers on a daily basis. The Ninth Circle applied the California three-way test, which finds that a class action waiver in a consumer contract is not applicable if (1) the agreement is a contract of adhesion – that is: In order to obtain a formal contract presented by a powerful party of a weaker party on a take-it-or-leave it basis, (2) the dispute likely involves small amounts of damages, and (3) the party with superior bargaining power has implemented a scheme to deliberately deceive a large number of consumers for small amounts of individual money. .