Trial Magazine

Passing affirmative legislation to restore legal rights is hard. More than a decade of work came to fruition on Sept. 20 when the U.S. House of Representatives passed H.R. 1423, the “Forced Arbitration Injustice Repeal (FAIR)” Act, by a vote of 225-186. The FAIR Act would eliminate forced arbitration in consumer, civil rights, nursing home, and employment cases and restore Americans’ right to decide which path to justice—jury trial, mediation, or other available mechanism—is appropriate after they’ve been physically or financially harmed. Plaintiffs still could select arbitration, but it would be a voluntary, informed choice. The bill also would prohibit class action waivers in the fine print of consumer or employment contracts.

The setup. By the time the FAIR Act, sponsored by Rep. Hank Johnson (D-Ga.), reached the House floor, it had 222 cosponsors. Ten days before the House floor vote, the House Judiciary Committee considered and voted on the bill. Members of the committee cited a newly released AAJ report indicating that Americans are more likely to be struck by lightning than to win in forced arbitration. To read the report, along with stories of people affected by forced arbitration, go to www.justice.org/ForcedArbReport19.

When the bill was in the House Judiciary Committee, people who had been denied justice by forced arbitration filled the public seats of the hearing room, and cosponsors of the bill told those victims’ stories, adding further momentum to move the bill out of committee. More than 80 consumer, labor, civil rights, and patient advocacy organizations signed on to letters expressing strong support for the bill. Labor unions, law professors, and other advocacy organizations also weighed in and supported passage.

Across the aisle. Rep. Matt Gaetz (R-Fla.) was the only Republican member of the House Judiciary Committee to support the FAIR Act and the only Republican cosponsor.  During the committee markup, Rep. Gaetz shared that he had heard personally from women who were assaulted and harassed on the job and then forced into arbitration. He gave a powerful speech about the importance of jury trials and holding big business accountable.

While other Republicans indicated the FAIR Act was too broad to garner their support, it was clear that members on both sides of the aisle believe that victims of sexual assault and harassment should be heard and that a secret process for making claims disappear is not acceptable. With this large crack appearing, it has become much harder for the U.S. Chamber of Commerce to argue that forced arbitration works well for anyone.

Rep. Debbie Lesko (R-Ariz.) represented the minority position during the first part of the floor debate on the procedural rules and conceded that she would support a narrower bill focused on sexual assault. This allowed the bill’s supporters to repeat the arguments made in committee and make the point that nothing positive for workers comes from any form of secrecy regarding employer misconduct.

Momentum. Many Democrats spoke in favor of the bill’s passage during the floor debate. The floor manager, Chairman Jerry Nadler (D-N.Y.), had more speakers than time to allocate. In contrast, Republican opposition led by Rep. Kelly Armstrong (R-N.D.) was tepid. Only two other members made floor statements in opposition to the FAIR Act, and Rep. Armstrong spent a long time on the floor by himself speaking in opposition to the bill.

The FAIR Act has been referred to the Senate Judiciary Committee. AAJ is looking for more client stories of people who have been harmed or denied justice due to forced arbitration. For more information about forced arbitration, contact AAJ Senior Director of Government Affairs Julia Duncan at julia.duncan@justice.org.

Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.