[Congressional Record Volume 162, Number 57 (Thursday, April 14, 2016)]
[House]
[Pages H1720-H1728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1730
                           FORCED ARBITRATION

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 2015, the gentleman from Georgia (Mr. Johnson) is recognized 
for 60 minutes as the designee of the minority leader.


                             General Leave

  Mr. JOHNSON of Georgia. Mr. Speaker, I ask unanimous consent that 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous materials related to the subject of this Special 
Order, which is forced arbitration
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Georgia?
  There was no objection.
  Mr. JOHNSON of Georgia. Mr. Speaker, it has been very thought-
provoking to listen to the comments and observations of my good friend, 
Steve King from Iowa, and my other good friend, Representative Ted Yoho 
from Florida.
  It is always good to hear the impressions of laypersons about the 
law. I say that not in a condescending way because I know that my good 
friend, Steve King, is a successful businessman, construction, and he 
knows all about the business, and my friend, Ted Yoho, is an esteemed 
doctor of veterinary medicine.
  So being a lawyer myself by training, it is good for me to hear the 
impressions and observations of laypersons. I

[[Page H1721]]

say that in a noncondescending way. So I thank the gentleman from Iowa, 
Representative King, for holding it down for us for that last hour.
  The preamble to the U.S. Constitution, which is the introductory 
statement setting forth the general principles of our American 
government, reads: ``We the people of the United States, in Order to 
form a more perfect Union, establish Justice, insure domestic 
Tranquility, provide for the common defence, promote the general 
Welfare, and secure the Blessings of Liberty to ourselves and our 
Posterity, do ordain and establish this Constitution for the United 
States of America.''
  I want to just put a bookmark right where it says ``establish 
Justice.'' It says that right after it says ``in Order to form a more 
perfect Union, establish Justice.''
  So justice was something that was foremost in the minds of the 
Framers of our Constitution who, I believe, just as Steve King said, 
were divinely inspired in their deliberations and their decisionmaking 
in terms of our Constitution.
  They were focused on the delivery of justice. They realized that 
justice was key. With that ideal, they established in Article III a 
court system, the judicial power and the framework for the court 
system. The judiciary, of course, is a coequal branch of government.
  The courts, since the inception of this country, have served as a 
check and a balance on the excesses of the other branches of government 
while at the same time dispensing justice to individuals who are found 
to have violated the law or who have been aggrieved by the misconduct 
of someone else and, so, they come to court seeking justice. So justice 
is the business of the court system, and the court system's business is 
to render justice.
  Now what is that word, justice? What does it mean? It is the 
maintenance or administration of what is just by law, as by judicial or 
other proceedings, in a court. Justice is the judgment of persons or 
causes by a judicial process to administer justice in a community. That 
is what justice is all about, and that is what courts do.
  People bring to the court of justice their causes of action so that 
they can receive justice in the courts. The courts are set up with a 
set of procedures, rules, as to how you proceed in court. And then 
there are substantive laws upon which the court looks to the precedent 
that has been set and decides cases brought to it in accordance with 
those precedents.
  Sometimes it must make new precedent, it must make new law, and it is 
done in accordance with the constitutional principles that have been 
laid out by our Framers. So this legal system has worked well. This 
legal system of trial by jury has worked very well.
  In addition to maintaining order through the criminal laws, the civil 
laws have enabled people to achieve justice when they have been 
wronged, including wronged by corporations.
  Companies don't like being brought to the bar of justice to be held 
accountable for wrongdoing. We know that corporations are powerful 
entities. They have more money than the average person. They are more 
powerful.
  So the way to equalize the power of just an individual against a 
corporation that he or she has accused of wrongdoing--the equalizing 
factor has always been the jury system, a jury of one's peers.
  That is what people have relied upon to address grievances, 
particularly with powers that are more powerful than they. They know 
that a jury of their peers is a mechanism whereby the truth can be 
found and that justice can be rendered.
  So going to court and having a jury trial when a person is aggrieved 
is a part of the fundamental fabric of this Nation. That is how we have 
done business for so long.
  It used to be before we had TV and radio that people would go down to 
the town square where the courthouse was always located and they would 
take the afternoon and they would go into the courtroom. They would 
have a calendar. They would know what cases were being heard.
  It was a published calendar, and everybody knew that a certain lawyer 
would be in town to try a case. They would make their schedule such 
that they could go down and see that proceeding. It would be an open 
court. Nobody would be excluded. Everybody would know in advance what 
was going to happen.
  You could sit there and watch the adversary process take place. You 
would see a judge seated, such as the Speaker is seated in this 
Chamber. That would be the person who would decide what laws were 
applicable. The jury would be to his or her left or right, and the 
judge would instruct them on the law.
  After they have heard all of the evidence from the attorneys in that 
adversary process, the judge would instruct the jury on the law and 
charge the jury to find the facts in its own wisdom and apply justice.
  The plaintiff would either win or lose, and the people would be in 
the courtroom watching the proceedings. And then, whatever happened 
everyone would have to live with.
  Sometimes the plaintiff won. Sometimes the defense won. That is the 
way that it has always been in this country up until pretty recently.
  Over the last 30 years or so, we have had an erosion of that process. 
The rich and powerful corporations have conspired to find ways that 
they can avoid being held accountable for the misdoings that they would 
be charged with committing by a regular person.
  Let's face it, ladies and gentlemen. Corporations are just like 
people. People do wrong and, when they do wrong, you have to have some 
way of making them do right, of making it right. That is what the 
courts have always been for.
  These corporations have gotten so powerful that they have come up 
with a way of privatizing the justice system. They have come up with a 
dispute resolution mechanism, which is not inherently bad, but it is 
being forced on people. That is the dispute resolution process known as 
arbitration.

  Arbitration is a great alternative dispute resolution process when it 
is decided upon by the parties after a dispute has arisen.
  But to bind a party to have to resolve a dispute in the arbitration 
setting as opposed to being able to exercise your Seventh 
Constitutional Amendment right to a jury trial and binding yourself, to 
have to go through an arbitration process, this is the scheme that has 
been hatched by the corporate interests who don't want to be held 
accountable in court.
  So what they have done is inserted these forced arbitration clauses 
into agreements that they have with consumers.
  So any kind of consumer agreement, for the most part nowadays, has a 
forced arbitration clause in it which requires that, in the event a 
dispute arises, the parties will settle that dispute not in a court of 
law, but in an arbitration proceeding.
  Now, arbitration proceedings, unlike the courthouse, are done in 
private. There is no calendar that is published, and the people are not 
invited to come in. It is a secret proceeding.
  It is a proceeding where, instead of having a judge trained in the 
law, you have got the possibility of having a layperson deciding the 
case. And that layperson may not be impartial.
  That person may be making their living from getting referrals from 
the corporations to decide the arbitration cases that come before them. 
So it is an unfair process. It is a secret process.
  The rules of procedure that are followed and required in a court are 
not required in an arbitration process nor are the substantive laws 
upon which cases are decided on precedent.
  There is no requirement that the substantive law be used by the 
arbitrator in making the decision. Of course, there is no jury trial. 
There is no trial by a jury of one's peers.
  So it is a very unfair setting, and it produces results that favor 
the corporations. This is what we are here to talk about today, this 
unfair, privatized secret system of justice that deprives people of 
having their day in court.
  It is unaccountable. It is unaccountable to anyone other than to the 
corporate bosses that refer the cases to them. It is very unfair to the 
consumer, to the little guy.
  So having said all of that, I yield to the gentleman from the State 
of Pennsylvania, Matt Cartwright, my friend, a distinguished trial 
attorney himself and, also, a member of the Oversight and Government 
Reform Committee in this Congress, the ranking member of the Health 
Care, Benefits, and Administrative Rules Subcommittee and,

[[Page H1722]]

also, a member of the Committee on Natural Resources.

                              {time}  1745

  Mr. CARTWRIGHT. Mr. Speaker, I thank the gentleman from Georgia for 
yielding to me and for laying out the problem.
  I rise proudly to remind my colleagues in this Chamber that what--as 
Representative Ted Yoho of Florida just mentioned--what is in the 
Constitution really, really matters. In fact, I credit Ted Yoho for 
carrying the Constitution with him at all times. I know that he says 
what is particularly dear to him in the Constitution is the Bill of 
Rights--those first 10 Amendments to the Constitution.
  And Representative Johnson alluded to it earlier, it is the Seventh 
Amendment that we are talking about right now. If you are scoring at 
home, the Seventh Amendment is the thing that gives you the right to a 
jury trial in a civil case. And I'll quote it: ``In suits at common law 
. . . the right of trial by jury shall be preserved . . .''
  It is a short sentence, it is unambiguous, it is easy to understand, 
and it is something that makes us Americans--that we can go to court 
and have our disputes settled by a jury trial. It is one of the things 
that has made this Nation great. It is one of the things that we went 
to war over in the American War of Independence because the British 
king was trying to take that right away from us. In suits of common 
law, the right of trial by jury shall be preserved.
  But I am here to say, Mr. Speaker, that there have been attacks on 
the Seventh Amendment. As Mr. Johnson pointed out so deftly, it is in 
the last 25 or 30 years that these attacks have come to a crescendo. 
Even in the Supreme Court of the United States now, they are getting so 
squishy on the Seventh Amendment that they think it is all right--it is 
a case called Concepcion from about 5 years ago--it is all right for 
corporations to have you enter into contracts that do away with your 
Seventh Amendment right to a jury trial in the event of a dispute. This 
is called a pre-dispute forced arbitration clause. It rears its ugly 
head in all sorts of ways to hurt workers and consumers and homeowners 
and Americans of every stripe.
  Now, what is wrong with this?
  What is wrong--and, again, Mr. Johnson of Georgia alluded to this. 
The main problem is that it is a secret system of justice. It is not 
out in the open. He is right. America has a tradition of open court 
systems, trials that you can go watch, proceedings of justice that are 
open and transparent and open to the sunlight so that sneaky things 
don't happen, things that they would be embarrassed to tell you about 
don't happen. That is the purifying aspect of sunlight overall, and 
that is why we treasure our justice system here in the United States.
  It is the opposite when you talk about forced arbitrations. You are 
talking about arbitrators who have been selected by who knows who. 
Certainly not elected, certainly not appointed by elected officials. 
Accountable to no one. No one.
  Is that really who you want deciding your case when you have a 
dispute?
  Absolutely not.
  Mr. Speaker, there is something even more insidious about these 
forced arbitration clauses, and that is this. It does away with any 
possibility of a class action.
  Now, why do we care about that?
  The ordinary American consumer may never get into a class action or 
know about one or care about one. But here is what happens.
  If, for example, your credit card company--when you signed up for 
your credit card, you signed a boilerplate agreement. There is no way 
you read through that whole thing, but there was a forced arbitration 
clause in there. It says, in any dispute between us and the consumer, 
the dispute shall be decided by an arbitration.
  What that means is that they can do anything they want to you. They 
can say, this month, in honor of it being April, we are going to charge 
everybody $45 for no reason. Forty-five dollars goes on your bill. If 
you don't pay it, they start dunning you and hurting your credit 
record. They can do that just for fun.
  What are you going to do? Are you going to go to court over it?
  No. You are going to join a class action because nobody can afford to 
hire a lawyer where $45 is the amount in controversy. That is why we 
have class actions, so the corporations don't get away with that monkey 
business.
  In forced arbitration clauses, that precludes any possibility of 
going to court and, thereby, it precludes any possibility of a class 
action. That means a lot of wrong can happen in this country at the 
hands of unaccountable corporations. They can get away with it because 
there is no chance of a class action.
  Well, I am here to raise my voice in support of something Mr. Johnson 
from Georgia has done. He has written something called the Arbitration 
Fairness Act, which remedies much of what I am talking about.
  I am also here to stand up and add my voice in support of things that 
the administration has done: executive orders, either already done or 
in the works, in the Department of Education to combat forced 
arbitrations against for-profit universities; in the Department of 
Defense to combat actions of predatory lenders against our armed 
service men and women and our veterans; executive orders in the 
Consumer Financial Protection Bureau to combat arbitration clauses such 
as the one I discussed about a credit card company; executive orders by 
the CMS, Center for Medicare Services, to combat abuses in arbitration 
clauses in nursing homes so that you wouldn't be able to bring a court 
case against a nursing home because you signed on the dotted line when 
you put mom or dad in the home so no matter what they do to mom or dad, 
you can't go to court, you have to go to arbitration. CMS is working on 
an executive order to curb that abuse.
  An executive order in the Department of Labor to enforce rules and 
laws about safe work places and fair pay to prevent these forced 
arbitration clauses from taking these cases out of the sunlight and 
into the dark back rooms of the arbitrations where goodness knows what 
is going to happen, and it is probably not justice.
  We have a statue of Thomas Jefferson right outside these chambers, 
Mr. Speaker. Thomas Jefferson said: ``I consider trial by jury as the 
only anchor yet imagined by man, by which a government can be held to 
the principles of its Constitution.''
  We need to honor those words of Thomas Jefferson, we need to honor 
the Seventh Amendment, we need to support Mr. Johnson in his 
Arbitration Fairness Act, and we need to support the administration 
with executive orders fighting these unfair and nontransparent 
mandatory forced arbitration clauses.
  Mr. JOHNSON of Georgia. Mr. Speaker, I thank Representative 
Cartwright.
  It is amazing that when you are standing across the yard with the 
fence in between you and your neighbor and you are telling your 
neighbor about that great day of fishing that you had and you are 
telling him about this fish that was that long, you can do as much 
lying about the length of that fish--sometimes you didn't even catch a 
fish--and it is okay to lie to your neighbor.
  But it is different when you go downtown and go to the courthouse 
because at the courthouse you are going to testify, you are testifying 
under oath, subject to being held accountable for perjury if you lie.

  But it is amazing that in a forced arbitration proceeding, there is 
absolutely no requirement that you be administered, or that a witness 
be administered an oath before they are allowed to testify. So, 
therefore, in an arbitration proceeding, the lever of perjury to force 
someone to tell the truth is not there and it hurts the pursuit of 
justice.
  Mr. Speaker, I thank Mr. Cartwright for his testimony and his 
statements today.
  I would point out that last year, the New York Times published an 
exhaustive and in-depth investigative series that pulled back the 
curtain and catalogued the immense harms of forced arbitration. In part 
1 of the series, which was entitled ``Arbitration Everywhere, Stacking 
the Deck of Justice,'' the Times explored the rise and dramatic spread 
of forced arbitration clauses, their impact on American workers, 
consumers, and on patients. This investigation found that corporations 
crippled the consumer challenges

[[Page H1723]]

across a wide swath of harmful practices simply by banning class action 
litigation.
  Furthermore, once corporations have blocked individuals from going to 
court as a class, the investigation found that most people simply 
dropped their claims entirely.
  Why?
  Because the amount in controversy was so small that it was not cost 
effective to hire a lawyer to go to court to recover such a small 
amount. The net result is that the corporate wrongdoers have escaped 
being held accountable because of these forced arbitration clauses, 
which equates to a ban on participating in class action litigation and, 
in some of those clauses, they had the words in there about class 
actions being bought.
  Mr. Speaker, I yield to the gentlewoman from California (Linda T. 
Sanchez), my friend, who serves on the Ways and Means Committee. She is 
a former labor lawyer. She has had an interest in this issue of 
arbitration, forced arbitration, for a couple of sessions of Congress. 
She has introduced legislation that would outlaw forced arbitration 
agreements in nursing home contracts--you know, where we go to take our 
loved ones who have to be committed to a nursing home and we have no 
choice but to sign the contract which has the arbitration clause in it 
because all of the other nursing homes have the arbitration clause in 
them as well. Representative Sanchez has filed legislation that would 
get at that very unfair process.
  Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I thank Mr. Johnson.
  I rise today to join Mr. Johnson and Mr. Cartwright in bringing 
attention to the very unfair and deplorable practice of forcing people 
into arbitration.
  In practice, what this consists of is generally those with more 
power, meaning very wealthy corporations, including confusing but 
legally binding language buried in the fine print of contracts, 
contracts that pretty much purveyed every aspect of our lives. This 
creates this insidious process in which people, in order to get a 
credit card or a cell phone or to put a loved one into a nursing home, 
have to accept the terms of this contract without really knowing what 
they are buying into.
  I want to start by saying that the concept of arbitration is a great 
one. I strongly support the principles of arbitration and the 
arbitration process because arbitration can do many good things. It can 
clear court dockets, it can help provide a more swift resolution to a 
problem, and it can also reduce legal fees. Those are the benefits of a 
fair arbitration process. In many ways arbitration can be a great 
thing.
  But--and this is the thing--people think that arbitration is this 
wonderful process. But what they don't realize is that buried in that 
fine print in forced arbitration, there can also be terms that limit 
the evidence that you can introduce. If you are forced into 
arbitration, there can be limits on the damages that you can claim. It 
can exclude your ability to request a jury trial. And mandatory binding 
arbitration has to be entered willingly by both parties, not just the 
party with the greater economic power. But, in fact, they know that 
they hold that leverage over the average consumer so they put this kind 
of limiting language into these arbitration clauses all the time.
  Many retailers, banks, and online services have forced arbitration 
clauses written into their contracts. These arbitration agreements can 
be forced on vulnerable parties who have little knowledge about what 
they are signing or what it means to sign away those rights. Frankly, 
most consumers have little or no choice in the matter because the 
contracts are ``take it or leave it.''

                              {time}  1800

  Why does this hit so close to home?
  My father has Alzheimer's, and at a certain point, he could not care 
for himself anymore, so we had to investigate nursing homes that could 
provide the kind of around-the-clock care that was required for him 
that my brothers and sisters and I simply could not.
  Sadly, in the nursing home arena, this is where, oftentimes, 
mandatory--forced--arbitration clauses are buried in these contracts 
for the admission of your loved one. Loved ones who cannot care for 
somebody who is physically ill or frail, again, have no real choice in 
the matter. They need to find facilities to care for their loved ones 
because they, simply, cannot do it on their own.
  That is why, in Congresses past, I introduced the Fairness in Nursing 
Home Arbitration Act. That legislation would make predispute mandatory 
arbitration clauses in long-term care contracts unenforceable, and it 
would restore residents and their families their full legal rights. 
What the legislation would do is say that you cannot force arbitration 
onto families who, in an emotional time and in a medical crisis, are 
looking for care for their loved ones. You cannot force them to sign 
something that they don't agree with or even understand. My bill would 
have allowed families and residents to have maintained their peace of 
mind as they looked for the best long-term care facilities for their 
loved ones.
  For desperate families who are unable to provide the adequate care at 
home, the need for an immediate placement for their loved ones makes 
these contracts, basically, take it or leave it, which gives them no 
choice at all in the matter. Families who are in the midst of these 
painful decisions to place a parent or a loved one in a nursing home 
rarely have the time or the wherewithal to fully and thoughtfully 
consider what it is they are signing when they sign a contract that 
contains a mandatory arbitration clause. They are not in a position to 
adequately determine what agreeing to such a clause will mean for their 
loved ones should the unthinkable happen.
  The Centers for Medicare & Medicaid Services, CMS, is slowly working 
to include some of my bill's provisions through the regulatory process, 
but much work still remains in this area. In September of last year, 
Democrats sent a letter to CMS and called for a final rule that will 
ensure that nursing home residents will only enter into arbitration 
agreements on a voluntary and enforced basis after a dispute arises, 
not before.
  We need commonsense solutions to forced arbitration agreements, 
solutions that would protect the average consumer, who is unfamiliar 
with the concept of arbitration and is not trained in the law. Many 
people may not even be aware of the rights they are signing away at a 
time when they are least prepared to make important decisions. As 
Members of Congress, we are called on to serve our constituents and to 
protect them from flagrant violations of their rights. We should be 
doing more to protect vulnerable families from these forced arbitration 
policies.
  I thank my colleague, Mr. Johnson, for being such a strong voice on 
this issue.
  Mr. JOHNSON of Georgia. I thank the gentlewoman from California.
  Next, I yield to the gentlewoman from Texas, my good friend Sheila 
Jackson Lee, a senior member of the Judiciary Committee and the ranking 
member on the Crime Subcommittee. She is also a member of the Homeland 
Security Committee. She is a lawyer and a former judge.
  Ms. JACKSON LEE. I thank the gentleman from Georgia for his 
leadership, along with Mr. Conyers, and for the introduction of a very 
important initiative, H.R. 4899.
  Mr. Speaker, many would think, particularly as we have watched the 
mediation and arbitration process grow as a newly developed practice 
amongst lawyers and one that businesses and others have seemed to 
adopt, that that was, in fact, helping consumers by allowing the 
concept of arbitration to be able to be utilized, thereby, allegedly, 
lowering the costs of litigation.
  In a 2010 survey, 27 percent of employers, covering over 36 million 
employees--or one-third of the nonunion workforce--reported that they 
required the forced arbitration of employment disputes. The practice of 
forced arbitration is widespread and damaging. For example, the ability 
to obtain key evidence that is necessary to prove one's case is often 
restricted or eliminated in arbitration proceedings, and it can be 
nearly impossible to appeal adverse decisions by arbitrators.
  We know that, in the Bill of Rights in the Constitution, there is a 
right to a trial by jury, a jury of one's peers. Therefore, it is a 
sacred right. This new practice had been projected as helping

[[Page H1724]]

the victim: oh, it will be a low-cost procedure; you will get an 
immediate decision; you won't have the stress of litigation; you might 
not even have to hire a lawyer. But, as indicated, the ability to 
obtain key evidence that is necessary to prove one's case is often 
restricted or eliminated in arbitration proceedings, and it can be 
nearly impossible to appeal adverse decisions by arbitrators.
  I was one of the first Members to bring attention to this issue when 
I prevailed upon the late Chairman Hyde to authorize the Judiciary 
Subcommittee on Administrative and Commercial Law, when I was the 
ranking member, to hold a hearing on that matter involving Carl Poston 
and the NFL Players Association, with Gene Upshaw, then executive 
director, in the LaVar Arrington case. You may recall the LaVar 
Arrington case as being of the former Washington Redskins football 
player who was forced into arbitration in order to resolve a contract 
dispute.
  Forced arbitration of State and Federal employment discrimination 
laws is also harmful to women workers. In 2015, nearly 64,000 
discrimination claims were filed with the Equal Employment Opportunity 
Commission under title VII, and more than 41 percent of those charges 
were for sex-based discrimination. Sex-based discrimination, including 
sexual harassment, remains a persistent problem for women in the 
workplace. Nearly 83 percent of sexual harassment charges that are 
filed with the EEOC are filed by women. Just imagine that mandatory 
arbitration of claims under State or Federal family and medical leave 
laws could have a disproportionate impact on women as well.
  I am pleased that this legislation was introduced, because it is a 
legislative initiative to restore rights. The bill is rightly named the 
Restoring Statutory Rights Act. It is also, I believe, the restoration 
of constitutional rights. Let me quickly tell you of the case of 
Stephanie Sutherland, which illustrates the difficulties of this forced 
arbitration.
  Stephanie was hired by her company to work as a staff assistant. Her 
work involved relatively routine, low-level clerical work for which she 
was paid a fixed salary of $55,000. She routinely worked 45 to 50 hours 
per week, but because she was classified by her employer as exempt from 
overtime, she did not receive any additional compensation. By the time 
Ms. Sutherland was terminated in 2009, she had worked 151 hours of 
overtime for which she should have been paid $1,867 had the Fair Labor 
Standards Act and the New York State labor laws been observed. She 
filed a class action lawsuit and sought to recover overtime for her 
work in excess of 40 hours a week and for other current and 
former nonlicensed staff--one or two staff employees of the firm--who 
worked overtime.

  When Ms. Sutherland was hired, she was given an offer letter that 
also provided, if an employment-related dispute arises between you and 
the firm, it will be subject to mandatory mediation. That was what the 
company attempted to do--enforce mandatory mediation. In her lawsuit, 
she attempted to enforce her rights because the Federal Fair Labor 
Standards Act had a provision to expressly permit lawsuits for minimum 
wage. To this end, the lower court was sympathetic to Ms. Sutherland's 
arguments. However, the United States Court of Appeals reversed, 
relying on the 2013 Supreme Court case.
  Therefore, we do have a conflict in the issue of dealing with 
arbitration that is forced. This is the core of why this legislation is 
so very important. I believe that, if parties agree to engage in 
mediation and arbitration, Mr. Speaker, so be it; but if you choose to 
use the court system that is designed by the Constitution as one of the 
three branches of government that all Americans should have access to, 
I will make the argument that you should not be forced into arbitration 
or mediation.
  I believe Mr. Johnson--and I look forward to joining him on his 
legislation--along with Mr. Conyers, is really lifting up the 
Constitution to ensure that every citizen has access to the courts of 
this land to help decide their issues of conflict and to choose the 
forum which they desire to use. I thank the gentleman for yielding to 
me, and I look forward to working with him on this very crucial 
constitutional issue.
  Mr. Speaker, I am pleased to join my colleagues of the Congressional 
Progressive Caucus to discuss the critical importance of an impartial 
and fair justice system, corporate accountability, consumer and 
employee protection, as well as the importance of enforcing laws on the 
books.
  I would like to thank Congressman Hank Johnson (D-GA) for his 
leadership in putting forth this Special Order.
  The practice of forced arbitration is widespread and damaging.
  In a 2010 survey, 27 percent of employers--covering over 36 million 
employees, or one-third of the non-union workforce--reported that they 
required forced arbitration of employment disputes.
  Although arbitration can be a valid and effective method of dispute 
resolution when both parties voluntarily agree to arbitrate, forced 
arbitration clauses that limit an employee's legal rights in a non-
negotiable contract are abusive and erode employees' traditional legal 
safeguards.
  For example, the ability to obtain key evidence necessary to prove 
one's case is often restricted or eliminated in arbitration 
proceedings, and it can be nearly impossible to appeal adverse 
decisions by arbitrators.
  I was one of the first Members to bring attention to this issue when 
I prevailed upon Chairman Hyde to authorize the Judiciary Subcommittee 
on Administrative and Commercial Law to hold a hearing on that matter 
involving Carl Poston and the NFL Players Association (Gene Uphsaw, 
Executive Director) in the LeVar Arrington case.
  You may recall LeVar Arrington as the former Washington Redskins 
football player who was forced into arbitration in order to resolve a 
contract dispute.
  Forced arbitration of state and federal employment discrimination 
laws is especially harmful to women workers.
  In 2015, nearly 64,000 discrimination claims were filed with the 
Equal Employment Opportunity Commission (EEOC) under Title VII, and 
more than 41 percent of those charges were for sex-based 
discrimination.
  Sex-based discrimination, including sexual harassment, remains a 
persistent problem for women in the workplace.
  Nearly 83 percent of sexual harassment charges filed with the EEOC 
are filed by women.
  In a national survey by ABC News and the Washington Post, one in four 
women reported experiencing sexual harassment, compared to one in ten 
men.
  Mandatory arbitration of claims under state or federal family and 
medical leave laws could have a disproportionate impact on women as 
well.
  Nearly 56 percent of employees who took time away from work to deal 
with a serious personal or family illness, or to care for a new child 
under the FMLA in 2012 were women.
  If my colleagues fail to take necessary action, mandatory arbitration 
will continue to be a barrier to justice for workers.
  I am pleased by the action of Mr. Conyers and Mr. Johnson for their 
leadership on Tuesday, Equal Pay Day, for introducing a very important 
piece of legislation that will address these inequities, (H.R. 4899) 
the Restoring Statutory Rights Act, which I am pleased to be an 
original cosponsor of.
  The Restoring Statutory Rights Act would ensure that when Congress or 
the states have established rights and protections for individuals, 
including protection against wage discrimination, that they are able to 
enforce these rights in court.
  This bill amends the Federal Arbitration Act to prohibit mandatory 
pre-dispute, commonly known as ``forced,'' arbitration agreements for 
claims rising under federal or state statute, the U.S. Constitution, or 
a state constitution.
  The bill would further require that a court determines whether an 
agreement is unconscionable, legally invalid, or otherwise 
unenforceable as a matter of contract law or public policy.
  Under current law, parties may resolve statutory claims, including 
claims rising under anti-discrimination statutes, through forced 
arbitration instead of the justice system.
  This important legislation is a critical step in eliminating 
longstanding and unacceptable discrimination and barriers imposed on 
women and minority.
  It should be noted that forced arbitration is a private system 
controlled by corporations to prevent corporate accountability.
  Buried in the fine print of countless employment, cell phone, credit 
card, retirement, and nursing home contracts, forced arbitration 
eliminates Americans' access to the courts, tipping the scales of 
justice in favor of corporate wrongdoers.
  When corporations force arbitration on individuals using 
nonnegotiable and many times unnoticed contract terms, it becomes an 
abusive weapon.
  Forced arbitration means giving up the most fundamental legal 
protection: the right to equal justice under the law.

[[Page H1725]]

  For decades, we have fought hard for dozens of laws that protect 
against discrimination based on age, sex, religion, race, disability, 
and unequal pay for equal work, such as the Civil Rights Act and the 
Equal Pay Act But these laws are meaningless if unenforceable in court.
  It's time to close the arbitration loophole that gives employers and 
businesses the right to ignore civil rights and consumer protection 
laws.
  Although states have tried to address this problem through their 
consumer protection laws, the courts have interpreted the Federal 
Arbitration Act (FAA) to trump state laws leaving consumers very little 
recourse.
  Arbitration can be a fair and effective method of dispute resolution 
when parties voluntarily agree to arbitrate.
  When the choice of arbitration is post-dispute--and therefore 
understandable and voluntary--it is a fair process that parties choose 
willingly.
  I call upon my colleagues to come together and pass legislation that 
would reinstate workers' ability to enforce their rights in a court of 
law and protect the rights of women and minorities.
  More than 20% of employees are covered by mandatory arbitration 
clauses.
  Tens of millions of consumers use consumer financial products or 
services that are subject to pre-dispute arbitration clauses.
  Federal court statistics show that 17,977 labor claims and 35,965 
civil rights claims were filed in 2012.
  National Arbitration Forum (NAF) arbitrators ruled in favor of 
consumers in less than 0.2% of all cases (30 out of 18,075) heard.
  These 30 victories only occurred in hearings where a consumer brought 
claims against a business; when companies brought claims against 
consumers, they were successful in hearings 100% of the time. The 
employee win rate after arbitration was 21.4%, which is lower than 
employee win rates reported in employment litigation trials (36.4% in 
federal court and 43.8% in state court).
  In cases won by employees, the median award amount was $36,500 and 
the mean was $109,858, both of which are substantially lower than award 
amounts reported in employment litigation ($384,223 for federal court 
litigation and $595,594 in state court litigation.)
  A 2015 study of federal court employment discrimination litigation by 
Theodore Eisenberg found that the employee win rate has dipped in 
recent years to an average of only 29.7 percent.
  At the same time, another 2015 study found that the employee win rate 
in employment arbitration had also dipped in recent years, to an 
average of only 19.1%; similar dip in employee win rates has occurred 
in state courts.
  58% settlement rate in federal court employment-discrimination 
litigation.
  While recent research on mandatory arbitration found a 63% settlement 
rate across all employment cases in that forum.
  In court, summary judgment motions were filed in 77% of the court 
cases, while summary judgment motions were raised in 48% of 
arbitrations.
  The win rate was 32% lower in mandatory arbitration than in 
litigation.
  Plaintiffs' overall economic outcomes are on average 6.1 times better 
in federal court than in mandatory arbitration ($143,497 versus 
$23,548) and 13.9 times better in state court than in mandatory 
arbitration ($328,008 versus $23,548).
  21.1% of employment cases in mandatory arbitration are brought by 
employees without legal counsel.
  Damages from arbitration are 16% of the average damages from federal 
court litigation and a mere 7% of the average damages in state court--
thus lawyers are reluctant to take cases that are subject to mandatory 
arbitration.
  Whereas on average plaintiffs' attorneys accepted 15.8% of potential 
cases involving employees who could go to litigation, they accepted 
about half as many, 8.1% of the potential cases of employees covered by 
mandatory arbitration.
  The first time an employer appeared before an arbitrator, the 
employee had a 17.9% chance of winning, but after the employer had four 
cases before the same arbitrator the employee's chance of winning 
dropped to 15.3%, and after 25 cases before the same arbitrator the 
employee's chance of winning dropped to only 4.5%.
  The study results provide strong evidence of a repeat employer effect 
in which employee win rates and award amounts are significantly lower 
where the employer is involved in multiple arbitration cases where the 
same arbitrator is involved in more than one case with the same 
employer, a finding supporting some of the fairness criticisms directed 
at mandatory employment arbitration.
  In the credit card market, larger bank issuers are more likely to 
include arbitration clauses than smaller bank issuers and credit 
unions. As a result, while less than 16% of issuers include such 
clauses in their consumer credit card contracts, just over 50% of 
credit card loans outstanding are subject to forced arbitration 
clauses.
  In the checking account market, which is less concentrated than the 
credit card market, around 8% of banks, covering 44% of insured 
deposits, include arbitration clauses in their checking account 
contracts.
  40% of the arbitration filings involved a dispute over the amount of 
debt a consumer allegedly owed to a company, with no additional 
affirmative claim by either party. In another 29% of the filings, 
consumers disputed alleged debts, but also brought affirmative claims 
against companies.
  The average disputed debt amount was nearly $16,000. The median was 
roughly $11,000. Across all six product markets, about eight cases a 
year involved disputed debts of $1,000 or less.
  Overall, consumers were represented by counsel in roughly 60% of the 
cases, though there were some variations by product. Companies almost 
always had counsel.
  Of the 1,060 arbitration cases filed in 2010 and 2011, so far as we 
could determine, arbitrators issued decisions in just under 33%.
  In approximately 25%, the record reflects that the parties reached a 
settlement. The remaining cases ended in an unknown manner or were 
technically pending but dormant as of early 2013.
  Mr. JOHNSON of Georgia. I thank the gentlewoman from Texas for her 
tremendous, informative presentation, which is all based 
constitutionally as the great lawyer that she is.
  Next, Mr. Speaker, I yield to my friend, the gentleman from 
Massachusetts, Joe Kennedy, who is an esteemed member of the Energy and 
Commerce Committee.
  Mr. KENNEDY. I thank Congressman Johnson. I am honored to be here 
with the gentleman, and I thank him for his leadership on this 
important issue.
  I thank, of course, Ranking Member Conyers, who has for so long been 
a guiding light in our party on issues of justice.
  Congressman, you and Mr. Conyers together have been this Chamber's 
champions on civil rights and equality in our justice system. You are, 
once again, leading the fight as we call for reforms to an unjust and 
unequal arbitration system. I am grateful, and I thank you for your 
leadership.
  Mr. Speaker, at the foundation of our democracy is one simple 
promise: no matter who you are or where you come from or what you have 
done, you will be seen as equal before the law.
  Thomas Jefferson, himself, wrote centuries ago:

       The most sacred duties of government is to do equal and 
     impartial justice to all citizens.

  Forced arbitration, Mr. Speaker, is an affront to that duty--a 
manipulation of the justice system that tips our scales in the 
direction of influence, money, and power. It removes even the slightest 
veneer of fair treatment in cases ranging from sexual harassment and 
discrimination to loss of housing and shelter, to neglect and abuse 
inside substance abuse treatment centers and retirement homes.
  When a plaintiff sits at an arbitration table across from a powerful 
corporation to challenge a fraudulent charge or to question its 
practices, the protections that we have spent centuries instilling in 
our justice system get washed away. There is no judge, no jury, no 
avenue for appeal. There is no justice at that table.
  At the very moment you need to access our courtrooms most, you find 
yourself locked out, diverted to a room outside the scope of our 
judicial system and beyond the bounds of our laws. Without your choice 
or sometimes even knowledge, forced arbitration transforms a level 
playing field into an uphill climb. At that point, most Americans turn 
around; but for the few who muster the will or the resources to 
continue their cases, there is no guarantee to counsel, forcing them to 
face off against some of the most experienced legal minds in our 
country completely on their own.
  The Arbitration Fairness Act would help remedy this profound 
shortcoming in our justice system and ensure that equal access to legal 
protection doesn't come along with a price tag. Mr. Speaker, that is 
one of the most fundamental promises we make in our country. I am 
grateful to Mr. Johnson for his leadership on the issue.
  Mr. JOHNSON of Georgia. I thank the gentleman from Massachusetts for 
his wise words.
  Mr. Speaker, at this time, I congratulate the writers of The New York

[[Page H1726]]

Times' expose, a three-part series on forced arbitration. The second 
part of the series examined the secretive nature of forced arbitration, 
and the third part of that series talked about the forced arbitration 
in the context of binding persons to arbitrate secular claims in 
religious tribunals, applying religious law.

                              {time}  1815

  I would strongly encourage those who are interested in this subject 
to look to The New York Times article because it gives you a good 
understanding of where we are as far as forced arbitration is 
concerned. I applaud the reporters for their groundbreaking work in 
writing that series and producing it.
  Jessica Silver-Greenberg, Michael Corkery, and Robert Gebeloff have 
done yeoman's work. They have exposed a threat to the justice system 
that shakes the tenets of our very democracy to its core. They deserve 
the highest commendation that I can give them, and that is just simply 
a shout-out from the well of the House.
  I understand that the Pulitzer Prizes for journalism will be 
announced this coming Monday. If I could nominate this series, I would 
certainly do so. I certainly support their nomination for that award.
  Next, Mr. Speaker, I yield to the gentleman from Rhode Island (Mr. 
Cicilline), my good friend, the former mayor of Providence, Rhode 
Island, a lawyer in his own right, a member of the Judiciary Committee 
upon which I also serve and, also, a member of the Foreign Affairs 
Committee.
  Mr. CICILLINE. Mr. Speaker, I thank the gentleman for yielding. I 
want to particularly thank the gentleman for his extraordinary 
leadership on this very important issue of forced arbitration, which is 
denying many, many Americans the right to have their grievances heard.
  I want to thank both Mr. Johnson and Mr. Conyers for not only the 
legislation, but for continuing to raise this issue.
  As many of my colleagues have said, forced arbitration denies 
individuals the most basic right to have their grievances heard fairly. 
No court, no lawyer, no judicial proceedings, all the things that we 
have over many centuries recognized as essential to the fair and 
impartial resolution of disputes.
  But there is an area that I want to speak about in particular where 
forced arbitration, I think, is particularly damaging and particularly 
unfair.
  In the coming weeks, I will introduce legislation that will protect 
the rights of our troops to pursue justice in our courts. My 
legislation will simply clarify the original intent of the Uniformed 
Services Employment Rights Act of 1994, also known as USERRA, and allow 
veterans and servicemembers to have their claims heard in court.
  This legislation was intended to protect the men and women of the 
Armed Forces from losing their jobs as a result of their service to our 
country. It specifically prohibits employment discrimination due to 
military service and guarantees benefits and reemployment rights to 
those who leave their civilian jobs to serve.
  However, these rights have rapidly eroded in recent years. Employers 
are requiring their employees to sign forced arbitration agreements 
barring access to justice for servicemembers. As my colleagues have 
discussed this evening, these agreements are often heavily tilted 
toward the parties who insist upon them.
  In mandatory arbitration, the employers can select the arbitrator and 
the location of the forum, and the avenues for appeal are entirely 
closed off. In many instances, these clauses are imposed by employers 
without the knowledge or consent of their employees.
  While USERRA explicitly prohibits any agreement that limits any right 
or benefit provided under the statute, some Federal courts have 
misinterpreted the law to exclude procedural rights.
  As a result, many of the 1.3 million brave men and women who serve in 
our military may return to civilian life without their jobs and without 
the ability to fully assert their rights in the courts.
  This includes servicemembers like Javier Rivera, an Army Reservist 
who was deployed for 6 months only to learn that his job had been 
filled in his absence. Despite 900 job openings, his former employer 
claimed that he could not find a single open position for him upon his 
return.
  Under these circumstances, USERRA should have provided some relief. 
At the bare minimum, it should have guaranteed him the opportunity to 
have his claim heard in a fair, objective forum. However, because of a 
forced arbitration clause in his contract, he had no access to the 
courts at all.
  Denying our servicemembers and veterans this essential right directly 
conflicts with the intent of USERRA. By limiting their access to legal 
recourse, it represents a direct affront to all who serve in our 
military.
  Our troops face many potential threats in service to our country. The 
last thing they should be concerned about is whether they will be able 
to keep their job.
  A Nation that asks young men and women to defend this country with 
their lives should protect them from losing their livelihoods when they 
come home.
  So I urge my colleagues to support this legislation to help preserve 
access to justice for our servicemembers and veterans and to recognize 
this is just one very powerful example of what the real damage and the 
gross unfairness of forced arbitration clauses do to millions of 
Americans.
  I thank Mr. Johnson again for yielding, for his extraordinary 
leadership on this issue, and for his fight to ensure that all 
Americans have access to the courts and fair resolutions of their 
grievances.
  Mr. JOHNSON of Georgia. Mr. Speaker, as this Special Order has 
powerfully documented, forced arbitration isn't open, isn't just, and 
isn't fair. Simply put, forced arbitration clauses have become an 
exculpatory mechanism to rig the justice system.
  Arbitrators don't have to be lawyers. Their decisions are practically 
irreversible. There is no record kept of the proceedings upon which you 
could appeal. There isn't even a requirement that witness testimony be 
given under oath.
  As The New York Times investigative series illustrated, arbitration 
can even take place in the offices of the party representing the 
defendant.
  There is also overwhelming evidence that forced arbitration creates 
an unaccountable system of winners and losers through what is called a 
repeat player advantage process that favors corporations over one-time 
participants, such as individual workers and consumers.
  An analysis of employment arbitrations found that workers' odds of 
winning were significantly diminished in forced arbitration.
  In 2012, the Center for Responsible Lending likewise reported that 
companies with more cases before arbitrators get consistently better 
results from these same arbitrators. Why? Because they are the ones who 
refer cases to the arbitrators.
  The arbitrators want to eat. They know that, if they rule against 
whoever is referring the cases to them, then that is going to cut short 
their ability to feed themselves.
  And so they rule in favor of the hand that is feeding them, and that 
is arbitrators, who are not even required to be lawyers and who have a 
perverse incentive to favor the repeat business over the consumers or 
the worker that they will never see again.
  I am particularly alarmed by the growing number of companies that 
hide forced arbitration clauses outside of the four corners of the 
document.
  For example, General Mills included a forced arbitration clause in 
its privacy policy that bound any consumer who downloaded the company's 
coupons or participated in its promotions.

  Under its new terms, consumers also waived the right to a trial 
simply by liking the company's page on Facebook or mentioning the 
company on Twitter. Can you imagine giving up your Seventh Amendment 
jury trial right on Facebook?
  It has become an increasingly common practice to use gotcha tactics 
to deceive consumers and employees by providing so-called notice of 
binding arbitration in brochures, email and memoranda, job application 
forms, signs outside of restaurants binding you--if you set foot in 
there and consume, binding you to forced arbitration, in-store 
application kiosks, employee training programs, contests and

[[Page H1727]]

games associated with company promotions. People have to watch out. 
Even on the side of a cereal box you can waive your right to a jury 
trial.
  Just imagine a child finding glass in their cereal, but because the 
company prohibited class action litigation through forced arbitration, 
the child's parents would have to individually not go to court, but go 
to an arbitrator to have their claim adjudicated.
  What if it affected several thousand children? That same forced 
arbitration clause would prevent class litigation to ensure that our 
children's food is safe to eat.
  These are actual cases where someone potentially lost their right to 
hold a company accountable for unlawful conduct in a public courtroom. 
In all of these cases, we are not even talking about an agreement with 
a dotted line.
  I am reminded of Justice Kagan's dissent in American Express v. 
Italian Colors where she observed that the Federal Arbitration Act was 
never meant to be a mechanism easily made to block the vindication of 
meritorious Federal claims and insulate wrongdoers from liability.
  The tides are turning. Americans are beginning to fight to restore 
their right to a jury trial. Policymakers are using every tool 
available to fix our laws so that corporations can no longer escape 
public accountability.
  I thank my colleagues for their participation in this Special Order. 
Before I close, I want to also thank the Congressional Progressive 
Caucus for their tireless work to advance a progressive agenda of 
equality and opportunity for all.
  I will close with this observation. The American people would fight 
back if someone came into their home and said: We are going to take 
away your Second Amendment right to bear firearms. They would fight.
  But when corporations take away their Seventh Amendment right to a 
jury trial, they remain mum, but not for much longer.
  People are standing up. People are tired. They are desiring change. 
They are angry and realize that they have been taken advantage of.
  They want to level the playing field, and that is exactly what the 
legislation that we have introduced in this Congress will accomplish.
  Mr. Speaker, I yield back the balance of my time.
  Mr. CONYERS. Mr. Speaker, during the congressional debates on 
arbitration more than 90 years ago, witnesses testified about the 
benefit of resolving disputes without judicial intervention. They 
noted, for example, that when arbitration is properly used, it can help 
parties avoid the uncertainty, delay, and costs of protracted 
litigation. Their testimony ultimately led Congress to pass the Federal 
Arbitration Act of 1925, which empowered courts to enforce arbitration 
agreements.
  As the use of pre-dispute forced arbitration agreements--especially 
with respect to consumer transactions and employment agreements--has 
proliferated in recent years, however, it is clear that arbitration is 
not always beneficial to all parties and it may, in fact, eviscerate 
the protection of critical federal consumer and civil rights statutes. 
It is also apparent that the secrecy of arbitration awards can be used 
to hide awareness of wrongdoing by businesses. And, there are serious 
concerns about whether some arbitrators are indeed neutral.
  The New York Times, in an excellent three-part series of 
investigative articles on the use of forced arbitration agreements 
published last year, reported that ``clauses buried in tens of millions 
of contracts have deprived Americans of one of their most fundamental 
constitutional rights: their day in court.'' Based on its exhaustive 
investigation of court records and hundreds of interviews with lawyers, 
judges, arbitrators, corporate executives, and plaintiffs, the Times 
found that arbitration practices are often closed, fail to adhere to 
rules of evidence or even substantive law, and are nearly impossible to 
appeal. The arbitration provisions that prohibit class actions, as the 
Times reports, are viewd by state judges as virtual `get out of jail 
free' cards ``because it is nearly impossible for one individual to 
take on a corporation with vast resources.'' By privatizing the justice 
system, arbitration ``bears little resemblance to court'' and has 
become an ``alternate system of justice'' for businesses precisely 
because it tends to favor them, according to the Times.
  Nothwithstanding these concerns, the use of pre-dispute forced 
arbitration clauses has become virtually ubiquitous. They appear in 
credit card agreements, car rental agreements, and employee handbooks. 
They even appear in nursing home agreements when they are signed ``at 
the time of admission only because the resident or family member does 
not even notice or understand the arbitration clause, or sign[ed] . . . 
out of fear that otherwise the admission will be jeopardized,'' 
according to the National Senior Citizens Law Center.
  Pre-dispute mandatory arbitration agreements do not offer any option 
to reject. Once signed, these agreements force consumers and employees 
to irretrievably waive their right to judicial redress for harms they 
have suffered, prevent them from availing themselves of any class 
action remedy, and deny them the right to otherwise obtain justice 
under applicable state and federal law.
  As a result, millions of consumers and employees across our Nation 
are legally bound by forced arbitration clauses in contracts with 
little or no ability to negotiate them.
  Accordingly, it is time for Congress to reconsider the value of pre-
dispute mandatory arbitration agreements. We must restore integrity to 
the arbitration process and limit the enforceability of mandatory 
arbitration clauses that provide no opportunity for consumers and 
employees to opt-out.
  Congress should not restrict the rights and options of consumers and 
employees to resolve disputes Rather, arbitration should be one option 
among many to resolve disputes. Legislation that protects consumers and 
employees is a common-sense solution for all Americans.
  For example, H.R. 2087, the ``Arbitration Fairness Act,'' is an 
excellent measure that was introduced by my colleague, Representative 
Henry C. ``Hank'' Johnson, Jr. This bill would make pre-dispute 
arbitration agreements unenforceable in employee, consumer, civil 
rights, and antitrust disputes. Importantly, H.R. 2087 would leave 
arbitration in effect when it is truly voluntary: after a dispute 
arises.
  Similarly, H.R. 4899, the ``Restore Statutory Rights Act,'' which was 
also introduced by Mr. Johnson earlier this week, would ensure that the 
rights and protections established by Congress or the states are 
enforceable in court.
  These bills would help restore balance and fairness to contractual 
agreements by allowing consumers, employees, franchisees, residents of 
long-term care facilities, and others to opt for arbitration, rather 
than have arbitration imposed on them as a pre-condition. Such measures 
would help ensure a fairer arbitration process because the terms of 
arbitration.
  Congress must do more to protect the right of consumers and employees 
to have access to the courts. Americans should not be forced to lose 
this precious right as a result of one-sided, pre-dispute mandatory 
arbitration agreements.
  Mr. WASSERMAN SCHULTZ. Mr. Speaker, I rise today on behalf of 
American consumers who are too often denied access to justice and 
forced into arbitration by contracts they were unable to negotiate 
fairly.
  The Federal Arbitration Act was enacted to resolve disputes among 
businesses of equal standing; not to restrict consumer access to our 
courts. The horrific distortion of this law has allowed certain actors 
to tip the scale in their favor and create an uneven playing field in 
the pursuit of justice.
  It is our responsibility to guarantee every American equal access to 
justice and protect the public from unfair and pernicious business 
practices. For this reason, I strongly support my colleague, 
Representative Hank Johnson's bill, the Arbitration Fairness Act. This 
bill would require that agreements to arbitrate employment, consumer, 
civil rights or anti-trust disputes be made only after the dispute has 
arisen. Consumers can only properly evaluate their options, and make a 
truly voluntary choice, after a dispute has arisen. Arbitration 
undeniably serves an important role in our legal system, but its use 
must be a choice, and not a mandate resulting from a one-sided 
contract.
  Americans deserve to choose whether court, arbitration, mediation, or 
any other method of dispute resolution works best for them. I urge my 
colleagues to join me in guaranteeing all Americans this meaningful 
choice by cosponsoring the Arbitration Fairness Act.

[[Page H1728]]

  

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