October 12, 2017
Authored by: Bryan Cave and Ari Weisbrot
Recent court decisions confirm the possibility of mandatory arbitration as a viable option for retailers frustrated with the rising costs of litigation, and the inability to recover their attorneys’ fees, for frivolous class action lawsuits.
As I reported in a recent Law360 article, the clear benefits of arbitration to retailers include:
- its barrier to class action claims;
- its rational approach to damages;
- the mainstreamed, and therefore less costly, discovery process;
- the extremely narrow right of appeal;
- the neutralization of jury nullification; and
- of course, the availability of fee awards where an arbitrator deems a claim frivolous.
All of that, plus the reduced risk of media coverage, should serve as major disincentive for a frivolator seeking to score big bucks.
However, whether a consumer plaintiff can be required to waive the right to trial and submit to arbitration depends on whether he or she has agreed to do