[Congressional Record Volume 168, Number 48 (Thursday, March 17, 2022)]
[House]
[Pages H3788-H3798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1215
            FORCED ARBITRATION INJUSTICE REPEAL ACT OF 2022

  Mr. NADLER. Madam Speaker, pursuant to House Resolution 979, I call 
up the bill (H.R. 963) to amend title 9 of the United States Code with 
respect to arbitration, and ask for its immediate consideration in the 
House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 979, in lieu of 
the amendment in the nature of a substitute recommended by the 
Committee on the Judiciary printed in the bill, an amendment in the 
nature of a substitute consisting of the text of Rules Committee Print 
117-34 is adopted and the bill, as amended, is considered read.
  The text of the bill, as amended, is as follows:

                                H.R. 963

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Forced Arbitration Injustice 
     Repeal Act of 2022'' or the ``FAIR Act of 2022''.

     SEC. 2. PURPOSES.

       The purposes of this Act are to--
       (1) prohibit predispute arbitration agreements that force 
     arbitration of future employment, consumer, antitrust, or 
     civil rights disputes; and
       (2) prohibit agreements and practices that interfere with 
     the right of individuals, workers, and small businesses to 
     participate in a joint, class, or collective action related 
     to an employment, consumer, antitrust, or civil rights 
     dispute.

     SEC. 3. ARBITRATION OF EMPLOYMENT, CONSUMER, ANTITRUST, AND 
                   CIVIL RIGHTS DISPUTES.

       (a) In General.--Title 9 of the United States Code is 
     amended by adding at the end the following:

``CHAPTER 5--ARBITRATION OF EMPLOYMENT, CONSUMER, ANTITRUST, AND CIVIL 
                            RIGHTS DISPUTES

``Sec.
``501. Definitions.
``502. No validity or enforceability.

     ``Sec. 501. Definitions

       ``In this chapter--
       ``(1) the term `antitrust dispute' means a dispute--
       ``(A) arising from an alleged violation of the antitrust 
     laws (as defined in subsection (a) of the first section of 
     the Clayton Act) or State antitrust laws; and
       ``(B) in which the plaintiffs seek certification as a class 
     under rule 23 of the Federal Rules of Civil Procedure or a 
     comparable rule or provision of State law;
       ``(2) the term `civil rights dispute' means a dispute--
       ``(A) arising from an alleged violation of--
       ``(i) the Constitution of the United States or the 
     constitution of a State;
       ``(ii) any Federal, State, or local law that prohibits 
     discrimination on the basis of race, sex, age, gender 
     identity, sexual orientation, disability, religion, national 
     origin, or any legally protected status in education, 
     employment, credit, housing, public accommodations and 
     facilities, voting, veterans or servicemembers, health care, 
     or a program funded or conducted by the Federal Government or 
     State government, including any law referred to or described 
     in section 62(e) of the Internal Revenue Code of 1986, 
     including parts of such law not explicitly referenced in such 
     section but that relate to protecting individuals on any such 
     basis; and

[[Page H3789]]

       ``(B) in which at least one party alleging a violation 
     described in subparagraph (A) is one or more individuals (or 
     their authorized representative), including one or more 
     individuals seeking certification as a class under rule 23 of 
     the Federal Rules of Civil Procedure or a comparable rule or 
     provision of State law;
       ``(3) the term `consumer dispute' means a dispute between--
       ``(A) one or more individuals who seek or acquire real or 
     personal property, services (including services related to 
     digital technology), securities or other investments, money, 
     or credit for personal, family, or household purposes 
     including an individual or individuals who seek certification 
     as a class under rule 23 of the Federal Rules of Civil 
     Procedure or a comparable rule or provision of State law; and
       ``(B)(i) the seller or provider of such property, services, 
     securities or other investments, money, or credit; or
       ``(ii) a third party involved in the selling, providing of, 
     payment for, receipt or use of information about, or other 
     relationship to any such property, services, securities or 
     other investments, money, or credit;
       ``(4) the term `employment dispute' means a dispute between 
     one or more individuals (or their authorized representative) 
     and a person arising out of or related to the work 
     relationship or prospective work relationship between them, 
     including a dispute regarding the terms of or payment for, 
     advertising of, recruiting for, referring of, arranging for, 
     or discipline or discharge in connection with, such work, 
     regardless of whether the individual is or would be 
     classified as an employee or an independent contractor with 
     respect to such work, and including a dispute arising under 
     any law referred to or described in section 62(e) of the 
     Internal Revenue Code of 1986, including parts of such law 
     not explicitly referenced in such section but that relate to 
     protecting individuals on any such basis, and including a 
     dispute in which an individual or individuals seek 
     certification as a class under rule 23 of the Federal Rules 
     of Civil Procedure or as a collective action under section 
     16(b) of the Fair Labor Standards Act, or a comparable rule 
     or provision of State law;
       ``(5) the term `predispute arbitration agreement' means an 
     agreement to arbitrate a dispute that has not yet arisen at 
     the time of the making of the agreement; and
       ``(6) the term `predispute joint-action waiver' means an 
     agreement, whether or not part of a predispute arbitration 
     agreement, that would prohibit, or waive the right of, one of 
     the parties to the agreement to participate in a joint, 
     class, or collective action in a judicial, arbitral, 
     administrative, or other forum, concerning a dispute that has 
     not yet arisen at the time of the making of the agreement.

     ``Sec. 502. No validity or enforceability

       ``(a) In General.--Notwithstanding any other provision of 
     this title, no predispute arbitration agreement or predispute 
     joint-action waiver shall be valid or enforceable with 
     respect to an employment dispute, consumer dispute, antitrust 
     dispute, or civil rights dispute.
       ``(b) Applicability.--
       ``(1) In general.--An issue as to whether this chapter 
     applies with respect to a dispute shall be determined under 
     Federal law. The applicability of this chapter to an 
     agreement to arbitrate and the validity and enforceability of 
     an agreement to which this chapter applies shall be 
     determined by a court, rather than an arbitrator, 
     irrespective of whether the party resisting arbitration 
     challenges the arbitration agreement specifically or in 
     conjunction with other terms of the contract containing such 
     agreement, and irrespective of whether the agreement purports 
     to delegate such determinations to an arbitrator.
       ``(2) Collective bargaining agreements.--Nothing in this 
     chapter shall apply to any arbitration provision in a 
     contract between an employer and a labor organization or 
     between labor organizations, except that no such arbitration 
     provision shall have the effect of waiving the right of a 
     worker to seek judicial enforcement of a right arising under 
     a provision of the Constitution of the United States, a State 
     constitution, or a Federal or State statute, or public policy 
     arising therefrom.''.
       (b) Technical and Conforming Amendments.--
       (1) In general.--Title 9 of the United States Code is 
     amended--
       (A) in section 1 by striking ``of seamen,'' and all that 
     follows through ``interstate commerce'' and inserting in its 
     place ``of individuals, regardless of whether such 
     individuals are designated as employees or independent 
     contractors for other purposes'';
       (B) in section 2 by striking ``chapter 4'' and inserting 
     ``chapter 4 or 5'';
       (C) in section 208 by striking ``chapter 4'' and inserting 
     ``chapter 4 or 5''; and
       (D) in section 307 by striking ``chapter 4'' and inserting 
     ``chapter 4 or 5''.
       (2) Table of chapters.--The table of chapters of title 9 of 
     the United States Code is amended by adding at the end the 
     following:

``5. Arbitration of Employment, Consumer, Antitrust, and Civil Rights 
    Disputes.................................................501''.....

     SEC. 4. EFFECTIVE DATE.

       This Act, and the amendments made by this act, shall take 
     effect on the date of enactment of this Act and shall apply 
     with respect to any dispute or claim that arises or accrues 
     on or after such date.

     SEC. 5. RULE OF CONSTRUCTION.

       Nothing in this Act, or the amendments made by this Act, 
     shall be construed to prohibit the use of arbitration on a 
     voluntary basis after the dispute arises.

  The SPEAKER pro tempore. The bill, as amended, shall be debatable for 
1 hour, equally divided and controlled by the chair and ranking 
minority member of the Committee on the Judiciary or their respective 
designees.
  After 1 hour of debate, it shall be in order to consider the further 
amendment printed in House Report 117-273, if offered by the Member 
designated in the report, which shall be considered read, shall be 
separately debatable for the same time specified in the report equally 
divided and controlled by the proponent and an opponent, and shall not 
be subject to a demand for a division of the question.
  The gentleman from New York (Mr. Nadler) and the gentleman from North 
Carolina (Mr. Bishop) each will control 30 minutes.
  The Chair recognizes the gentleman from New York.


                             General Leave

  Mr. NADLER. Madam Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and insert extraneous material on H.R. 963.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, H.R. 963, the Forced Arbitration Injustice Repeal Act, 
or the FAIR Act, is critical legislation that would restore access to 
justice for millions of Americans who are currently locked out of the 
court system and are forced to settle their disputes against companies 
in a private system of arbitration that is often skewed in the 
company's favor over the individual.
  Private arbitration has been transformed, by 40 years of reckless 
Supreme Court decisions, from a voluntary forum for companies to 
resolve commercial disputes into a legal nightmare for millions of 
consumers, employees, and others who are forced into arbitration and 
are unable to enforce certain fundamental rights in court.
  By burying a forced arbitration clause deep in the fine print of 
take-it-or-leave-it consumer and employment contracts, companies can 
evade the court system, where plaintiffs have far greater legal 
protections, and hide wrongdoing behind a one-sided process that is 
tilted in their favor.
  For example, arbitration generally limits discovery; does not adhere 
to the Federal Rules of Civil Procedure; can prohibit class actions, 
which it almost always does; and deny the right of appeal. Worse yet, 
arbitration allows the proceedings, and often even the results, to stay 
secret, thereby permitting companies to avoid public scrutiny of 
potential misconduct.
  For millions of workers and consumers, the precondition, whether they 
know it or not, of obtaining a basic service or product, such as a bank 
account, a cell phone, a credit card, or even a job, is that they must 
sign a nonnegotiable contract that includes a provision requiring all 
disputes to be resolved in private arbitration.
  These take-it-or-leave-it contracts, which were once clearly 
disfavored under the law, now seem to have been blessed by the Supreme 
Court as standard operating procedure in the corporate world.
  That means for millions of people, the ability to enforce consumer, 
labor, antitrust, and civil rights laws are subject to the whims of a 
private arbitrator, often selected by the companies themselves.
  These private arbitrators are not required to provide plaintiffs any 
of the fundamental protections guaranteed in the courts, and their 
further employment can depend on building a good reputation with the 
companies that hire them. Unsurprisingly, arbitration has become a 
virtual get-out-of-jail-free card many companies use to circumvent the 
basic rights of consumers and workers.
  The FAIR Act reverses this disastrous trend by prohibiting the 
enforcement of forced arbitration clauses in consumer, labor, 
antitrust, and civil rights disputes.
  Importantly, this legislation does not preclude both parties from 
agreeing to arbitrate a claim after a dispute arises. It does, however, 
protect unsuspecting consumers and employees from being forced to give 
up their right to seek justice in court.

[[Page H3790]]

  Last month, Congress came together in a bipartisan fashion to 
prohibit forced arbitration clauses in suits concerning sexual 
harassment and sexual assault. Watching that legislation be signed into 
law was a proud moment for many of us in this Chamber. This bill simply 
extends the same basic fairness in that bill to other workers and 
consumers.
  That bipartisan bill, which gathered, as I recall, about 130 
Republican votes, is exactly the same as this bill, only limited in its 
application.
  Every argument for that bill is an argument for this bill. This bill 
simply extends the same basic fairness in that bill, as I said, to 
other workers and consumers.
  I thank the gentleman from Georgia (Mr. Johnson) for his leadership 
on this bill.
  Madam Speaker, I urge my colleagues to support this vital 
legislation, and I reserve the balance of my time.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  I rise in opposition to H.R. 963. There is nothing fair about the 
FAIR Act. The bill would undermine Americans' freedom to contract; 
burden the judicial system, both Federal and in all States in the 
country; and restrict access to justice.
  This bill would ban arbitration agreements across nearly all 
contracts. It outlaws arbitration agreements in employment disputes, 
consumer disputes, antitrust disputes, and civil rights disputes. It 
outlaws arbitration agreements with respect to not only big, huge 
corporations but the most humble businesses and parties in the country, 
those that I served in my law practice.
  Democrats propose that arbitration is bad for Americans, but it has 
been a fixture of our legal landscape for almost 100 years. They claim 
that arbitration is forced. Both of their claims are wrong.

  Arbitration has many benefits. It is more efficient and faster than 
going to court. The rules are not nearly as arcane. Injured parties get 
their relief sooner, and they spend less money along the way.
  Plaintiffs in employment and consumer disputes, according to studies, 
actually win more in arbitration than they do in court. They get more 
money in arbitration. They win more often in arbitration.
  Democrats know that arbitration has plenty of benefits. How do you 
know this? Because in this very bill, Democrats have carved out their 
union friends from the mandates of this bill.
  In other words, if the bill becomes law, powerful unions, and no one 
else, can still use these valuable agreements vis-a-vis individuals.
  This carve-out also tells us that Democrats know there is no such 
thing as forced arbitration. Agreements that are truly forced are 
already illegal under existing law in every State in the country.
  People are no more forced to agree to an arbitration provision than 
they are to agree to any other provision of a contract. The bill, 
instead, bans private parties from knowingly and willingly agreeing on 
a process to resolve future disputes. It tells Americans, no matter how 
informed or sophisticated they may be, that they can't be trusted to 
manage their own relationships by agreeing in advance to the means of 
resolution to be used in the event of a dispute.
  Our Democrat colleagues seem to believe that Americans can't be 
trusted to think for themselves. Big Government needs to tell them what 
to do. Their freedom to contract should be restricted by the wisdom 
from Washington.
  Democrats argue that this bill is no big deal because parties can 
still decide to use arbitration after a dispute arises, but that never 
happens in practice for much the same reason that many disputes go to 
court and are resolved outside of a jury. About 1 to 2 percent actually 
go all the way.
  The decision to get into a lawsuit is not always purely rational, 
taken from all points of view, and is often affected by tempers that 
are different once the dispute has arisen than when the parties are 
considering a position of cool judgment in advance.
  Their incentives change after a dispute has arisen, and people will 
pick a strategy to resolve that dispute at that time. They won't 
necessarily be looking for a process, then, that is good for both 
parties for many reasons.
  When you are immersed in a dispute, there is also a greater chance 
that a lawyer that you may have retained would have an incentive to 
direct you in the direction of litigation rather than arbitration, and 
those incentives certainly won't necessarily be consistent with a 
faster and cheaper alternative.
  Rather than helping the little guy stand up to big companies, this 
bill would take the option to arbitrate off the table for everybody and 
put more money in the pockets of trial lawyers, most especially 
plaintiffs' class action trial lawyers.
  The bill would force more people into court. They will pay more and 
possibly recover less. But it would also force some people out of the 
justice system altogether.
  Some people will be unable to pay for an expensive lawsuit, or they 
may have a claim so small that it is only practicable for them to bring 
it themselves, which arbitration facilitates.
  Let's be clear, too. The surge in new lawsuits hurts employment. It 
hurts businesses and keeps them from being able to afford to hire more 
people. It will raise their costs at the worst possible time, when they 
are already dealing with supply chain problems and record inflation 
caused by failed Democrat policies, and not only by prohibiting the use 
of arbitration going forward but by retroactively eliminating it, 
rendering it null and void in millions of contracts already outstanding 
right now, at this point in the life of our Nation, when we have 8 
percent inflation, another constraint on the supply chain imposed by 
Democrat policies.
  Everyone should be sounding the alarm on this blatant overreach. At 
the end of the day, this bill curries favor with the plaintiffs' bar 
and union bosses, and it does so at the expense of hardworking 
Americans and small businesses, especially.
  For these reasons, I urge my colleagues to oppose H.R. 963, and I 
reserve the balance of my time.

                              {time}  1230

  Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
  I want to correct something Mr. Bishop said. This bill does not ban 
arbitration. It bans forced arbitration. It bans the practice or the 
enforceability of the practice of having a provision in a contract that 
you sign to buy anything or an employment contract where you are 
forced, that is there and that if you try to change it, they won't sell 
you the car, they won't sell you the cell phone, they won't hire you, 
so you have no choice, and that forced arbitration removes the 
constitutional right to a trial by jury.
  Madam Speaker, I yield 2 minutes to the gentleman from Tennessee (Mr. 
Cohen), a member of the Judiciary Committee.
  Mr. COHEN. Madam Speaker, this morning I went to a breakfast where I 
heard the thoughts of Miss Sheila Bair. Miss Bair is a Republican. She 
describes herself as a Midwest Republican who worked on Senator Dole's 
staff for 8 years. She is a former assistant secretary of the Treasury 
and a former head of the FDIC under Republican Presidents.
  She said specifically the problems with inflation in this country are 
worldwide. They are the supply chain, which is worldwide, caused by the 
pandemic in China and other problems. They are worldwide. So any more 
of this rhetoric about Biden and his problems with the supply chain, it 
is not Biden; it is a worldwide problem.
  The same thing for the price of oil. Yesterday, in Judiciary 
Committee we heard someone say it is Biden's fault that the price of 
oil has gone up. The price of oil is a worldwide market. President 
Biden's actions do not affect the worldwide market. It is supply and 
demand. We need to not hear these canards.
  And the same for this bill. This is, as Mr. Nadler said, forced 
arbitration. Mr. Johnson has been working on this for years, and I 
compliment him on his work and his success. This gives consumers a 
chance to get their cases heard and to get a rightful judgment, not be 
forced to take an arbitration that is almost always entirely pro-
business.

[[Page H3791]]

  This is the difference between Republicans and Democrats. Democrats 
look out for people, people who have had injustice done to them and 
look for a way to correct it and give them equity. Republicans look to 
business, who caused the harm, and try to defend them and keep their 
pockets full.
  I support the bill. All American consumers would support the bill. I 
urge its passage.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  The distinguished chairman of the committee offered to correct me by 
saying that the bill only prohibits forced arbitration, said that was a 
correction, as if I misspoke as to facts.
  Let me read from the language of the bill: ``Notwithstanding any 
other provision of this title, no predispute arbitration agreement or 
predispute joint-action waiver shall be valid or enforceable with 
respect to an employment dispute, consumer dispute, antitrust dispute, 
or civil rights dispute.''
  The word ``forced'' was not in that language, Madam Speaker. It 
prohibits all predispute arbitration agreements and post-joint action 
waivers.
  I yield 2 minutes to the gentleman from Florida (Mr. Gaetz).
  Mr. GAETZ. Madam Speaker, I thank my gracious colleague for yielding, 
though we do not hold the same position on this piece of legislation.
  Madam Speaker, when our fellow Americans get a cell phone contract, 
when they get cable, when they get internet, they are subject to forced 
arbitration. Virtually every single American lives under a forced 
arbitration provision today, and most do not know it.
  Do we really think that people have the ability to go negotiate 
against AT&T or Comcast or in many cases big businesses that employ a 
great deal of Americans? Of course, they don't.
  And so what that means is that we have a two-tier system of dispute 
resolution. Regular folks get to show up at Article III courts the 
taxpayers fund to resolve their disputes, and meanwhile oftentimes big 
business gets a concierge lane to be able to resolve matters in their 
favor and oftentimes to preclude the resolution of a matter at all.
  Think about instances of wage theft where big businesses can take 
just a little bit of money and not pay their employees. Well, an 
individual employee would have a very hard time getting a lawyer and 
making a case on that, and so they need the class action tool to be 
able to get redress for their grievances. The forced arbitration 
provisions that impair so many of our fellow Americans limit that class 
action tool, and then people end up getting really screwed in the 
process.
  I support the legislation. I am proud to be the Republican lead, and 
it is my belief that if Article III courts funded by the taxpayers are 
good enough for the rest of us, they ought to be good enough for big 
business. I thank the gentleman for his indulgence.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  I thank the gentleman from Florida, and as I suggested earlier, if 
the bill were a matter only of big businesses, it would be a very 
different bill, but just as there is no limitation to forced 
arbitration agreements in the language of the bill, there is no 
limitation to arbitration agreements entered into between little guys 
and big companies.
  The very first appeal I ever took in a 30-year law practice in 1992 
was in a case called Bennish v. North Carolina Dance Theater, in which 
I represented a fledgling, very-hard-pressed economically arts group in 
my hometown that had an employment dispute with a dancer who wanted to 
litigate. They had an arbitration agreement. It would have destroyed 
that organization financially to have to engage in extended and 
expensive litigation. This bill would have made the enforcement of that 
arbitration agreement unlawful, and it has nothing to do with big 
business.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I yield 4 minutes to the gentleman from 
Rhode Island (Mr. Cicilline), a member of the Judiciary Committee.
  Mr. CICILLINE. Madam Speaker, I rise in strong support of H.R. 963, 
the FAIR Act, which prohibits the enforcement of forced arbitration 
clauses in consumer, employment, civil rights, and antitrust disputes.
  Buried deep within the fine print of almost every contract consumers 
sign are clauses that deprive hardworking Americans and small 
businesses of their day in court when they attempt to hold corporations 
accountable for breaking the law.
  We heard from lots of small businesses in support of this bill. No 
one claimed that they were required to have forced arbitration in order 
to remain successful. Forced arbitration protects systemic wrongdoing. 
Everyone is always allowed to have arbitration if they want to 
voluntarily once a dispute arises.
  This forces people to give up their right to have their claims heard, 
and most Americans don't even know they have given up that right 
because they are forced to sign contracts, where in the fine print is a 
provision where you are waiving that right. When you get a phone, when 
you get cable, when you have internet service. This outrageous 
practice, as my colleague from Florida just described, is nothing short 
of a corporate takeover of our Nation's system of justice, and it 
affects almost every single American.
  This private arbitration that is very expensive, that lasts a very 
long time also lacks the procedural safeguards of our justice system. 
It is not subject to oversight, it doesn't have a judge, doesn't have a 
jury, it is not bound by laws even passed by Congress or the States in 
which it occurs, but it has become a requirement of everyday life for 
tens of millions of consumers and workers who have to surrender their 
rights to hold wrongdoers accountable.
  These provisions require people to give up the right to have their 
claims heard in a court of law and to have that remedy that will 
prevent the wrongdoer from continuing.
  Think about someone bringing a family member or loved one into a 
nursing home who doesn't have the opportunity to negotiate taking out 
that provision because someone they love is in desperate need of care.
  I will give you a real example: Someone who is defending our country; 
the case of Lieutenant Commander Kevin Ziober, who testified in support 
of the FAIR Act in the last Congress. He served in the U.S. Navy 
Reserves since 2008. He was activated multiple times to serve in 
Afghanistan and Iraq.
  On the last day of his employment, they had a party for him. They had 
a cake in the shape of a flag; they celebrated him; and moments later 
he was fired. When he said to his employer, ``You can't fire me, there 
is a Federal statute that protects me,'' they said, ``Sorry for you, 
you agreed to forced arbitration. You waived away your rights in your 
employment contract.'' And in the fine print, sure enough, there it 
was.
  He testified at the hearing in 2019 that his case was in arbitration 
7 years later. Nothing fast about that. And sadly, he said, ``This 
happens every day across America, not only to servicemembers and 
veterans whose rights are violated, but also to working people and 
consumers of all backgrounds.''
  The FAIR Act will ensure that what happened to Lieutenant Ziober and 
what happens to millions of other hardworking Americans never happens 
again. Let's restore justice to our justice system by getting rid of 
these pernicious, horrible, unfair provisions.
  As I conclude, I thank Congressman Johnson for his extraordinary 
leadership. He has been fighting to try to free the hardworking 
Americans and consumers and people who fight for our country from the 
bondage of forced arbitration clauses, and finally we can do that 
today. Vote ``yes.'' Vote for the FAIR Act.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  We still haven't heard an explanation for why this legislation deems 
it appropriate to eliminate arbitration for parties of all sizes. We 
keep hearing about the little guy versus the massive corporation.
  Even in that circumstance, of course, what we may be talking about is 
like the case from 2011, AT&T Mobility v. Concepcion, where the issue 
was people in California had bought cell phones, they had been offered 
a free cell phone, but it wasn't made clear that they would have to pay 
the sales tax. So

[[Page H3792]]

there was a $5 claim per purchaser, and wealthy plaintiffs' class-
action lawyers wanted to bring a big lawsuit. With tens of thousands of 
them, they might get a $5 coupon, but the lawyers would buy a new jet.
  That may be in some circumstances, even the dispute with the big guy. 
But leave that aside. We still don't hear any explanation for why you 
are wiping out arbitration as a means that parties choose, even if they 
are on equal bargaining power.
  Madam Speaker, I yield 2 minutes to the gentleman from Wisconsin (Mr. 
Tiffany).
  Mr. TIFFANY. Happy St. Patrick's Day, Madam Speaker. I just want to 
gently correct my colleague from North Carolina when he cited 8 percent 
inflation. On an annualized basis, we are seeing it being measured at 
10 percent here. I can understand the Representative from Tennessee's 
sensitivity toward Bidenflation.
  Today, we are here because the Democrats want to pass legislation 
that insults the intelligence of Americans. According to my colleagues 
on the other side of the aisle, the only people sophisticated enough to 
enter into arbitration agreements are unions, so they have exempted 
them from this bill. Convenient.
  This legislation prohibits predispute arbitration agreements, which 
are a fair, efficient, and effective way for consumers, workers, and 
businesses to settle disputes without costly and time-consuming 
litigation that mainly benefits the trial bar. This bill will also 
deprive Americans of an effective legal option, while costing them more 
time and money.
  Predispute arbitration agreements exist in many employment and 
consumer contracts today and are enforced like any other kind of 
contract. Arbitration is generally fair, often leads to better outcomes 
for workers, and does not keep claimants from simultaneously alerting 
the world to bad actors. Those agreements create a win-win situation 
for parties to contract in advance on a process for resolving future 
disputes.

  Courts, accordingly, uphold and enforce lawful agreements to 
arbitrate when disputes arise between parties, an approach consistent 
with the fundamental principle that arbitration is a matter of 
contract. This policy of individuals being free to contract has 
arguably long been a feature of American law. Existing law also permits 
courts to invalidate agreements under generally applicable contract 
defenses, such as fraud or duress.
  Some will argue that arbitration requires confidentiality. This is 
not true. The parties to the agreement always have a right to disclose 
details of the proceeding unless they have a separate confidentiality 
agreement. Nor does current law typically preclude a party from 
disclosing information obtained in the arbitration process or any 
resulting award. Arbitration is usually less expensive and faster than 
litigation.
  The SPEAKER pro tempore (Ms. Williams of Georgia). The time of the 
gentleman has expired.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield an additional 1 
minute to the gentleman from Wisconsin.
  Mr. TIFFANY. It normally minimizes hostility, is less disruptive of 
ongoing and future business dealings, and is often more flexible. This 
legislation does not favor the American consumer. The only ones favored 
are the unions and the trial bar. This is not right for Americans, and 
I urge my colleagues to vote ``no'' on this un-fair act.
  Mr. NADLER. Madam Speaker, I yield 4 minutes to the distinguished 
gentleman from Georgia (Mr. Johnson), a member of the Judiciary 
Committee and a sponsor of this bill.
  Mr. JOHNSON of Georgia. Madam Speaker, I thank the chairman for the 
time today to speak on the FAIR Act, and I ask my fellow colleagues to 
vote ``yes'' on this bill.
  My colleagues and I on the other side of the aisle will disagree on 
much, but on one thing we can all agree, and that is the Constitution 
of the United States of America is a great document.
  At the beginning of that document is the preamble, and the first 17 
words of the preamble read as follows: ``We the people of the United 
States, in order to form a more perfect Union, establish justice,'' and 
then it goes on. But you can see at the very top, the ideal of the 
Founders was to establish justice in this country.

                              {time}  1245

  So they went about the Constitution by giving power to the 
legislative branch in Article I, to the executive branch in Article 
Number II, and to the judicial branch, the Court system, to establish 
justice in Article III.
  And then, in the Bill of Rights, the first 10 amendments to the 
Constitution where the Bill of Rights for we, the people, gave us our 
individual rights, with the exception of Amendment 10, which gives the 
States all powers not reserved to the Federal Government.
  So the Bill of Rights, in the Seventh Amendment to the Constitution, 
it guarantees the right to a jury trial, a trial by a jury of one's 
peers for any civil case where the amount in controversy exceeds $20 or 
more. That is still the law in this country. That is our Constitution.
  But the Supreme Court has seen fit to erode our freedoms insofar as a 
right to a jury trial by allowing corporations, employers, to take away 
that right from people. That is forced arbitration.
  Gretchen Carlson, with FOX News, when she came forward with her 
claims that she was fired because she resisted the demands of Roger 
Ailes to have sex with him, and she filed a civil rights action, she 
was met with the bar of a forced arbitration clause in the employment 
agreement that she signed.
  I was so happy, Madam Speaker, to attend a bill signing ceremony a 
couple of weeks ago at the White House where my colleague, Cheri 
Bustos' legislation, the Ending Forced Arbitration of Sexual Assault 
and Sexual Harassment Act was signed into law.
  We need to go further. We just heard, within the last couple of 
weeks, of former coach Brian Flores of the Miami Dolphins, who filed a 
lawsuit against the Miami Dolphins and a couple of other clubs, as well 
as the NFL, alleging that he had been discriminated against racially. 
He had been denied hiring opportunities and retention and compensation. 
He filed a complaint.
  He is met by the NFL with an arbitration clause. If it is good enough 
for sexual assault and sexual harassment cases, constitutional rights, 
those rights, that same ability needs to enure to those who have been 
aggrieved by racial discrimination and other types of discrimination. 
And consumers need to be allowed to assert their Seventh Amendment 
right when it comes to a dispute with a shop owner or shopkeeper.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. NADLER. Madam Speaker, I yield the gentleman an additional 1 
minute.
  Mr. JOHNSON of Georgia. And so, what we have seen with the U.S. 
Supreme Court is they have allowed corporations to have rights under 
our Constitution. Nowhere in it is there a section for corporations.
  Let's restore freedom to the people of this country as guaranteed by 
the Bill of Rights under the Constitution that we all live under. It is 
a constitutional right that, when there is a dispute, a party should be 
able to take that dispute to court and have a jury trial, and no forced 
contract should deprive that person of that constitutional right.
  That is what the FAIR Act will do. It will render unenforceable, 
after the act is signed into law, unenforceable, any pre-dispute forced 
arbitration clauses in consumer agreements and in employment 
agreements, and also in civil rights cases, causes of action and also 
antitrust actions.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  The distinguished gentleman from Georgia suggests that this bill is 
about whether or not we are preserving the right to jury trial in the 
Constitution. But I submit, that is not really what is at stake.
  The question is whether you resolve a dispute through arbitration or 
you go to the court system. If you go to the court system, there are 
innumerable paths within the court system that lead to not having your 
case decided by a jury.
  In fact, only about 1 to 2 percent of cases end up proceeding to a 
determination by a jury. That means 99 or 98

[[Page H3793]]

out of 100 cases do not. They might be dismissed on a motion for 
summary judgment. They might be dismissed for failure to state a claim. 
There may be settlement processes that come to fruition during the 
course of the case.
  But it is almost never true--think about that--that a case in court 
goes to a jury. So this notion that this bill, by eliminating the 
choice of arbitration, somehow preserves everybody's jury trial 
magically is a false choice.
  And more to that point, the gentleman from Georgia, and also the 
chairman, in the inception, noted that we have just had a bill signing 
of a bill that excepts from enforceable arbitration agreements the 
category of sexual assault, sexual harassment. The majority of 
Republicans supported that.
  The majority of Republicans will not support this bill because it 
represents the throwing out of the entire mechanism of arbitration, 
which has been, as I indicated, a feature of the legal landscape used 
with great utility and utilized throughout the last hundred years 
almost, since 1925.
  Madam Speaker, I yield 3 minutes to the gentleman from Oregon (Mr. 
Bentz).
  Mr. BENTZ. Madam Speaker, I move to recommit H.R. 936 and have my 
amendment that strikes the retroactivity provision of this bill 
included in the Record.
  It is wrong, clearly not right, for Congress to step in and 
retroactively invalidate parts of millions of existing contracts. The 
parties to those contracts, in good faith, relied on those parts of 
their contracts when they struck their bargain. But if this bill 
becomes law, it will rewrite millions of existing contracts, which will 
lead to waves of new litigation.
  This litigation will place new costs on businesses, consumers, and 
employees, who will be forced to pay more for lawyers, hundreds of 
dollars per hour and may get stuck for years in long court battles 
instead of having available the solution of arbitration.
  Applying new laws retroactively undermines the rule of law and upends 
the certainty that parties are trying to create when they negotiate and 
enter into a contract.
  My motion would make this bill apply only to agreements entered into 
after this bill goes into effect. I offered this amendment at the 
markup in the Judiciary Committee, but the Democrats there rejected it.
  I offered this amendment to the Rules Committee, but the Democrats 
there chose not to make it in order.
  I offer this amendment for a third time here on the floor of this 
House because this matter is critically important. Retroactively 
voiding millions upon millions of existing contracts is truly bad 
policy.
  By making this bill apply only to future contracts, we can avoid the 
inherent unfairness of having Congress directly interfere in millions 
upon millions of existing agreements. I urge my colleagues to support 
my motion to recommit.
  Madam Speaker, if we adopt this motion to recommit, we will instruct 
the Committee on the Judiciary to consider again my amendment to H.R. 
963 to ensure that the Democrats' attempt to eviscerate arbitration 
will not apply retroactively to the millions upon millions of 
contractual agreements already in place.
  Madam Speaker, I ask unanimous consent to insert the text of this 
amendment in the Record immediately prior to the vote on the motion to 
recommit.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Oregon?
  There was no objection.
  Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
  I just want to point out that this bill does not ban arbitration. If 
two parties have a dispute and prefer arbitration to going to court, 
they can have arbitration. This bill bans forced arbitration, meaning 
arbitration that is entered into contracts that people have no ability 
to change. That is why it says pre-dispute arbitration agreements are 
struck by this bill, not post-dispute arbitration agreements.
  So this bill does not eliminate arbitration agreements if they want 
to. It does eliminate forced arbitration agreements that the party, 
usually the employee or the consumer had no knowledge of probably and 
no ability to say no to. We used to call them contracts of adhesion, 
but we don't do that anymore.
  Madam Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. 
Jackson Lee), a member of the Judiciary Committee.
  Ms. JACKSON LEE. Madam Speaker, I thank my friends and colleagues, 
Chairman Johnson and Chairman Nadler, for this long overdue legislation 
that we voted on last year; and, as well, to acknowledge the forced 
arbitration legislation that was signed by the White House dealing with 
sexual assault.
  Now we have come full circle, so let me try to reinforce, because our 
friends on the other side of the aisle--and I call them friends--not 
only have it wrong, they have it upside down. It is completely 
misconstrued as to what this legislation does.
  And if you go out on the street corner and talk to any American they 
will say, of course I want the FAIR Act, because forced arbitration 
says to them that, in essence, you are obligated, you are indentured to 
the contract that you signed to get a job, to buy a phone, to get that 
big TV, and that you are not able to pursue your due process rights.
  Now, this is a constitutional issue. The Fifth Amendment completely 
indicates that you cannot be deprived of life, liberty, or property 
without due process of law, however you choose your due process of law.
  We go on to the 14th Amendment; of course, part of the historic 13th, 
14th and 15th Amendments, and it indicates that no State shall make or 
enforce any law which shall abridge the privileges or immunities of 
citizens of the United States under this Constitution, which includes 
the right to a trial by jury, nor shall any State deprive any person of 
life, liberty, or property without due process again; and that you 
would guarantee equal process and justice under the law.
  So let me factually say, though the signing of any contract or 
document is voluntary, often large corporations make it impossible to 
use their product or be employed without agreeing to a contract with a 
forced arbitration, making signing of the contract or document anything 
but voluntary; and clearly, it has constitutional implications.
  Something that should alarm all American consumers is that according 
to a study commissioned by University of California Davis Law Review, 
81 companies in the Fortune 100, including subsidiaries or relating 
affiliates, have used arbitration agreements in connection with 
consumer transaction.
  Now let me be very clear. When you have a dispute, we are perfectly 
happy for you, as the individual, part of the contract, to say to the 
corporation, I don't care about my rights. I am going to throw myself 
on the mercy of arbitration. And in doing so, you may subject yourself 
to a limited decision, as Brian Flores was finding out.
  Madam Speaker, let me tell you that American economic supremacy does 
not stem from the contributions of modern-day oligarchs, billionaires, 
CEOs, or the wealthy. It comes from the middle class. It comes from 
those 60 million workers and countless others who put in an honest 8-
hour day, five times a week, in the simple pursuit of trying to feed 
their families and take care of their communities.
  The SPEAKER pro tempore. The time of the gentlewoman has expired.
  Mr. NADLER. Madam Speaker, I yield the gentlewoman an additional 30 
seconds.
  Ms. JACKSON LEE. Madam Speaker, I thank the gentleman for his 
generosity.
  I oppose the upcoming amendment that talks about not excluding 
unions. Unions have agreements between individuals. Unions have the 
power, through their persons they represent, to vote yea or nay for 
that contract. So if they vote yea or nay on that contract, their eyes 
open on the arbitration, it is the union that will be protecting that 
individual. They will not be in that process alone.
  In the instance of an individual and the contracts that are signed, 
they will be alone. But they will not be alone if the FAIR Act is 
passed and the Constitution is upheld. That is why I support 
enthusiastically the FAIR Act and oppose the amendment to be 
forthcoming.

[[Page H3794]]

  Pass the FAIR Act because justice and the Constitution requires it.
  Madam Speaker, I rise in strong support of H.R. 963, ``The FAIR Act'' 
which prohibits a predispute arbitration agreement from being valid or 
enforceable in an employment, consumer, antitrust, or civil rights 
dispute.
  Action on this legislation is long overdue considering the long 
history of the problems caused by forced arbitration. The FAIR Act was 
passed by the House in the 116th Congress, so I hope we can pass it 
again now and that the Senate will do the same this time so we can 
finally resolve this problem.
  Forced arbitration is typically due to a clause in a contract that 
takes away employees' and consumers' rights to pursue litigation in the 
case their legal rights are violated. 60 million American employees and 
myriad consumers are unfairly, and usually unknowingly, subjected to 
its limitation of their legal rights.
  Though the signing of any contract or document is voluntary, often 
large corporations make it impossible to use their product or be 
employed without agreeing to a contract with a forced arbitration 
clause, making signing of the contract or document anything but 
voluntary.
  Something that should alarm all American consumers is that, according 
to a study commissioned by the University of California Davis Law 
Review, 81 companies in the Fortune 100, including subsidiaries or 
related affiliates, have used arbitration agreements in connection with 
consumer transactions.
  The study also found that possibly two-thirds of American households 
are covered by consumer based forced arbitration agreements.
  This means nearly 86 million American households have their 
Constitutional right of access to the judicial system restricted.
  For American employees, the numbers are also staggering. Similarly, 
60 million American employees are subject to forced arbitration 
agreements of which they are often unaware until a dispute arises for 
which they seek judicial redress.
  The extensive reach of arbitration clauses is only increasing, with 
the Economic Policy Institute estimating 80 percent of private sector 
nonunion workers being subject to forced arbitration clauses by 2024.
  Madam Speaker, American economic supremacy does not stem from the 
contributions of modern-day oligarchs, billionaires, CEOs, or the 
wealthy; it comes from the middle class. It comes from those 60 million 
workers and countless others who put in an honest 8-hour day 5 times a 
week in the simple pursuit of trying to feed their families and take 
care of their communities.
  The fact that so many of these hard-working Americans are having 
their legal rights taken away without them knowing it is morally 
reprehensible and must be put to an end. The FAIR Act remedies that 1 
problem.
  In addition to being sound policy, the FAIR Act promotes racial 
equity in our rapidly diversifying country and workforce.
  Another study from the EPI found 59.1 percent of African American 
workers (7.5 million workers) are subject to mandatory arbitration, as 
are female workers (at 57.6 percent).
  Unfortunately, this is not surprising considering African Americans 
and women are two of the most historically discriminated against groups 
in the United States.
  Forced arbitration continues the struggles of African Americans in 
the workplace, from slavery, sharecropping, and redlining to ongoing 
segregation, discrimination, racism, and voter suppression. As these 
statistics show, our struggle for equity in the workplace continues.
  We are exhausted, yet we remain in the fight. We must continue to set 
right historical wrongs, and the FAIR Act provides us an avenue to do 
so.
  Fairness in the workplace for women is also further remediated by 
this legislation. In this country, we have a disgraceful wage gap 
between men and women of 82 cents to the dollar, according to the 
latest Bureau of Labor Statistics figures.
  As a Member of the Women's Caucus, I have been fighting for pay 
equity for American women since before I arrived here as a 
Representative in 1995, and I believe that equal pay for equal work is 
a simple matter of justice.
  Wage disparities are not simply a result of women's education levels 
or life choices. In fact, the pay gap between college educated men and 
women starts as soon as they enter the workplace and expands shortly 
thereafter. Women can have the same background, work in the same field, 
and perform the same functional position, yet still be grossly 
underpaid. Disproportionately subjecting women to forced arbitration is 
yet another stain on this country's historical attitude towards women 
in the workforce.
  I have consistently been a proud sponsor and cosponsor of legislation 
that expands legal rights, creates a more level playing field, and 
erodes long standing social disparities.
  The FAIR Act achieves these goals, and I therefore urge my colleagues 
to support the FAIR Act.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  On the other side of the aisle, we hear repeated references to 
defending the Constitution and the American way. I would remind the 
Chamber that our economy, the American economy, is built on contracts; 
which contracts, under the rule of law, are not forced, but enforced 
when someone refuses to abide by his or her agreement. That is not 
forced. That is where a contract is enforced.
  We, our courts, our judicial system, and, yes, arbitration is the 
means by which we call people to live by their bargains, and that has 
been the key to the most successful economy in the history of the 
world. It has certainly been the state of affairs, as I said, for 
almost 100 years.
  Throwing that out, dispensing with a major component of that on the 
premise that you are pursuing the American system is contrary to fact. 
It is, as Democrats often seek to do, it is transformational. It seeks 
to transform America, not to reinforce and persist it.
  Madam Speaker, I yield 3 minutes to the gentleman from California 
(Mr. McClintock).

                              {time}  1300

  Mr. McCLINTOCK. Madam Speaker, the gentleman is absolutely right. The 
bill purports to assert a very important constitutional right, the 
right to trial by jury in civil actions. But it does so by denying 
everyone a very important other constitutional right, the freedom of 
unimpaired contract, the right of two parties to agree to exchange 
goods and services according to their own best judgment.
  Now, because of the excesses and expenses and uncertainties that have 
plagued our civil courts, many consumers and producers, and many 
employees and employers, find it advantageous to waive their right to 
civil jury trials in any disputes between them in favor of a simpler, 
cheaper, and faster arbitration.
  Now, proponents tell us it is an uneven playing field, and this 
requirement is often imposed in nonnegotiable, take-it-or-leave-it 
propositions. This isn't exactly true. Every employee and every 
consumer, no matter how weak and vulnerable, has an absolute defense 
against a bad agreement. It is the word ``no.'' No, the pay isn't good 
enough. No, the price is too high. No, I don't like the binding 
arbitration clause or any other terms, and I am taking my business 
elsewhere.
  Now, even when there aren't good alternatives, the fact is that every 
provision in a contract is a take-it-or-leave-it proposition if one 
side or the other insists on it. The question for each side is whether 
the totality of the contract is beneficial to them or not. It is every 
grownup's right to make that decision for themselves without somebody 
in government making it for them.
  Remember, the so-called forced arbitration provision forces the 
company to accept arbitration as well. For example, I am not a lawyer. 
I can't afford to hire one to take a big company to court. For me, 
binding arbitration helps level the playing field by providing me with 
an inexpensive alternative that the company must abide by. This bill 
takes that protection away from me.
  According to the U.S. Chamber of Commerce, through arbitration, 
employees prevail three times more often, recover twice as much money, 
and resolve their claims more quickly than they could through 
litigation. And in most cases, the employer pays the entire cost of 
arbitration.
  According to one study, in claims between $10,000 and $75,000, the 
consumer claimant was charged an average of $219. Now, you compare that 
to the cost of hiring an attorney and taking on an entire corporate 
legal department.
  The net result of this bill will be higher prices for products and 
lower wages for workers as companies factor the high cost of litigation 
into their business models.
  Madam Speaker, that is not fair.
  Mr. NADLER. Madam Speaker, I reserve the balance of my time.
  Mr. BISHOP of North Carolina. Madam Speaker, I thank the gentleman 
from California for his remarks.

[[Page H3795]]

  It causes me to remark, as the gentleman from Tennessee said a moment 
ago, that it is Democrats who look out for the interests of the little 
guy and look out for the interests of the people. I wonder why it is 
that looking out for the interests of the people invariably involves 
restricting their freedom in some way. What a remarkable notion.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I yield 3 minutes to the distinguished 
gentlewoman from Washington (Ms. Jayapal), a member of the Committee on 
the Judiciary.
  Ms. JAYAPAL. Madam Speaker, I thank the chairman for yielding.
  Madam Speaker, I rise in strong support of the Forced Arbitration 
Injustice Repeal Act.
  Forced arbitration deprives workers of the choice to have their day 
in court. When companies impose forced arbitration clauses, they choose 
every aspect of the process. They choose the mediator; they choose the 
location; and they choose the terms of the relief.
  This is a lose-lose scenario, and it disproportionately harms 
workers, particularly women and communities of color, but it imposes 
enormous consequences for everyone.
  You sign a contract for car repair, for car rental, for any consumer 
transaction, and when you need that car rental, hidden in those 
contracts is a prohibition from you taking any claim to court. No 
choice, no notion, even, for the majority of people that this 
fundamental right to that choice to sue an unscrupulous corporation is 
being taken away from you when you sign that contract.
  Madam Speaker, I think of this bill as a bill for the little guy or 
the little woman. Women and people of color forced into arbitration 
face mostly White male arbitrators in environments that heavily favor 
corporate interests.
  When musician Jay-Z entered arbitration without a single Black 
arbitrator in the room, he asked for ``neutrals of color.'' But only 
three suggested alternatives were Black, one of whom was a partner at 
the law firm representing the opposing party.
  Eliminating forced arbitration would open the courthouse doors for 
women, for workers of color, for poor folks across this country, 
advancing social equity and aiding the fight against discrimination. 
But it is also the right thing for every single consumer to be able to 
pursue this right to a day in court.
  Just last week, President Biden signed into law my bill with 
Representative Cheri Bustos to ban forced arbitration in cases of 
sexual harassment and sexual assault. That will protect the right of 60 
million workers to a fair day in court. And that is just the people who 
are subject to employment contracts.
  On top of that, it will apply, and it will apply retroactively, to 
all the contracts around sexual assault and sexual harassment. That is 
huge progress.
  What is good enough in cases of sexual assault and sexual 
harassment--and that bill passed in a bipartisan and bicameral way--is 
good enough for all workers.
  It is time to take the next step by passing this bill to extend these 
protections to a fair day in court across the board.

  Again, we emphasize that if somebody wants arbitration, it doesn't 
stop that route, but it does say you can't be forced only into this and 
into denying your day in court.
  Now, let's also be clear that the FAIR Act is carefully crafted to 
protect unions. It preserves essential union bargaining power while 
creating freedoms for nonunionized workers. My colleagues on the other 
side of the aisle have introduced an amendment that would undermine 
that power. This cannot happen. We cannot allow our Republican 
colleagues to undermine unions and the foundation of our middle class.
  Madam Speaker, I urge my colleagues to pass the FAIR Act, and I thank 
Congressman Hank Johnson for his leadership.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself such time 
as I may consume.
  Madam Speaker, one of the things that we have heard repeated a number 
of times, as the gentleman from Rhode Island suggested and the 
gentlewoman from Washington just said, is that if you go to 
arbitration, the company picks the arbitrators, and that is it. That is 
not, in fact, correct.
  Courts police the fundamental fairness of the arbitration process. If 
there is a process that is fundamentally unfair, the courts will modify 
it until it is fair. So, that is a misconception.
  Furthermore, it has also been suggested that it is by the whim of the 
arbitrator what the result is. That is exactly what Mr. Cicilline, I 
believe, said. That also is erroneous.
  If an arbitrator writes a decision that manifests a disregard of the 
governing law, like the soldier who had been in arbitration for 8 years 
that he suggested, the courts will vacate, strike down, that 
arbitration award.
  It is important to know those premises before you decide what to do 
on this bill.
  Madam Speaker, I yield 2 minutes to the gentleman from Wisconsin (Mr. 
Fitzgerald).
  Mr. FITZGERALD. Madam Speaker, I rise in opposition to H.R. 963.
  H.R. 963 undermines freedom of contract as well as consumer choice by 
banning informed, consenting adults from freely entering into contracts 
to arbitrate disputes.
  Arbitration generally works well and is a fair and effective way to 
resolve disputes. While civil litigation can be long, complex, and 
costly, arbitration provides a cheaper and efficient process to resolve 
disputes in a timely manner.
  Banning predispute arbitration agreements would mean Americans spend 
more time in court with no guarantee of better outcomes. Banning 
arbitration agreements during a time of significant inflation and in 
the middle of a supply chain crisis will effectively lower Americans' 
income.
  While larger companies may be able to deal with the expense of a slew 
of new lawsuits, this change will cause harm to smaller businesses that 
may not survive lengthy and costly litigation battles.
  Because postdispute arbitrations are rare, banning arbitration 
agreements will flood the court system. For one thing, some claims that 
are addressed through arbitration now may be individualized, making 
them unsuitable for class treatment.
  Even where claims can't be combined, a plaintiff may still be worse 
off as a class member than he would be with the claim in arbitration. 
This is because the benefits of arbitration, particularly lower 
litigation costs, coincide with lower revenue for others, such as trial 
lawyers.
  Banning certain predispute arbitration clauses and similar policy 
will benefit trial lawyers, not necessarily consumers.
  Madam Speaker, I urge my colleagues to oppose this legislation.
  Mr. NADLER. Madam Speaker, I yield 4 minutes to the gentlewoman from 
Pennsylvania (Ms. Wild).
  Ms. WILD. Madam Speaker, I thank the chairman for yielding.
  Madam Speaker, I rise as someone who in my past life defended 
corporations and entities that often had mandatory arbitration clauses 
in their contracts. As such, I am uniquely qualified to address the 
myths that have been perpetuated about the FAIR Act. By the way, 
``myths'' is a polite term for ``lies.''
  One has to consider that if we believe these claims that forced 
arbitration is cheaper, fairer, and faster, then surely workers and 
consumers would voluntarily choose it. So, there is no harm in 
restoring Americans' freedom to choose for themselves how to seek 
justice.
  First myth: The FAIR Act eliminates arbitration entirely, and no one 
will choose arbitration if it is voluntary.
  Fact: The FAIR Act doesn't eliminate arbitration, as has been said 
over and over here today. It just prohibits forced arbitration and 
allows both parties to choose arbitration voluntarily after a worker's 
rights or a consumer's rights have been violated.
  If forced arbitration were instead voluntary, the private market 
would incentivize arbitration providers to treat both parties fairly 
and equally so that both parties would choose that process because they 
would feel like they are getting an equal opportunity at justice.
  Second myth: Consumers and workers are more likely to win and get 
higher awards in forced arbitration than in court.

[[Page H3796]]

  Fact: This is a lie. That is the result of a misleading study, which 
deliberately cherry-picked data by excluding all results for the most 
common way consumers and workers file their cases in State courts and 
through class actions.
  The Chamber of Commerce only examined outcomes of individual cases 
filed in Federal court because it knows that very few consumer and 
worker cases are filed in Federal court. Americans are, in fact, more 
likely to be struck by lightning than they are to win a monetary award 
in a forced arbitration.
  A study based on self-reported data from two of the leading private 
arbitration providers revealed that, on average, only approximately 382 
consumers won a monetary award each year, less than the number of 
people struck by lightning every year in the United States. While an 
estimated 60 million workers are subject to forced arbitration clauses, 
only 82 prevailed in employment forced arbitration claims in 2020.
  Third myth: Forced arbitration is faster and, as we have heard from 
some people across the aisle, cheaper than litigation.
  Another completely false claim is based on faulty data from a forced 
arbitration database, which systematically deleted older cases, 
completely skewing the average length of a case in forced arbitration--
simple data manipulation.
  The idea that arbitration would provide consumers a cheaper way to 
litigate their claims, perhaps suggesting that they would do that 
without a lawyer, no major company will ever go to arbitration without 
their highly paid company lawyers. And every individual, whether they 
are in court or in arbitration, would need representation against a 
corporation regardless of the forum that they are in.
  Fourth myth: The court system is overbooked, so forced arbitration 
provides more flexibility for scheduling.
  While more powerful defendants have an incentive to drag out 
resolution of a case, that incentive exists whether they are in court 
or arbitration.

                              {time}  1315

  It is in the best interest of the individual who is filing the claim 
to seek the fastest possible resolution for his or her claim, and that 
would be done regardless of which they choose.
  By the way, corporations often choose courts over arbitration to 
resolve disputes that they initiate, showing that they do so when it 
benefits them.
  The SPEAKER pro tempore. The time of the gentlewoman has expired.
  Mr. NADLER. Madam Speaker, I yield an additional 1 minute to the 
gentlewoman from Pennsylvania.
  Ms. WILD. Madam Speaker, myth number 5, the FAIR Act violates the 
freedom to contract. This is my favorite one. Whose freedom? That of 
corporations or Americans? There was a comment that we are in the most 
successful economy in the history of the world, but for whom? Not 
necessarily for consumers or workers.
  Don't Americans have the right to participate in the economy without 
being forced to forego the rights and protections that are afforded to 
them under the law? The United States Constitution's Seventh Amendment 
guarantees the right to trial by jury for every American.
  What if corporations inserted provisions into their contracts forcing 
Americans to give up their First or Second Amendment rights to get or 
keep a job? Would we still be talking about the freedom to contract?
  Finally, the last myth. The FAIR Act is retroactive. It is not 
retroactive. It only applies to cases filed on or after the date of 
enactment. We need a level playing field between corporations and 
industries and the people who find themselves aggrieved by them. The 
arbitration process--make no mistake about it--is a private process. 
People bringing their claims need to be able to fairly evaluate the 
best forum for that claim to be adjudicated.
  Mr. BISHOP of North Carolina. Madam Speaker, I reserve the balance of 
my time.
  Mr. NADLER. Madam Speaker, I yield 2 minutes to the gentlewoman from 
Illinois (Ms. Schakowsky).
  Ms. SCHAKOWSKY. Madam Speaker, I rise today in very strong support of 
ending the use of forced arbitration and to restore the right of 
millions of Americans to their day in court. I think my colleagues have 
done a really good job on this side of the aisle in explaining why this 
is so important for basic rights of all Americans.
  Madam Speaker, I want to tell you a couple things that have happened 
in Illinois. I deal a lot with older Americans in my district--as I am 
sure many of you hear from senior citizens--and I have heard these 
really horrific stories from families who discover that in nursing 
homes that their loved ones have been neglected or abused or even 
worse.
  These families want to do something about it. They want to hold these 
nursing homes accountable, and then they find out that they have quite 
inadvertently, quite unknowingly have signed a forced arbitration 
agreement.
  Picture these moments. These are people who are often in very 
emotional situations. They are bringing their loved ones to a nursing 
home. This is never an easy situation. The last thing they are thinking 
about, among all the paperwork that is put before them, that they have 
signed away their rights. And then they find out that something has 
happened to their loved one in a nursing home and they are left without 
the recourse that they need.
  We have too often seen corporations who are virtually immune from the 
kind of accountability that they should be held to. I think the time is 
up right now. If it is good enough for sexual harassment and abuse, it 
is certainly good enough for people in nursing homes that have been 
abused and that their families have their day in court.
  Madam Speaker, I support the FAIR Act.
  Mr. NADLER. Madam Speaker, I yield back the balance of my time.
  Mr. BISHOP of North Carolina. Madam Speaker, I yield myself the 
balance of my time.
  Madam Speaker, I was intrigued by the situation we just had on the 
floor, the gentlewoman from Pennsylvania, I think she said she 
represented big corporations. Yet, she spoke to the fundamental 
unfairness of arbitration. It is ironic perhaps.
  I spent almost 30 years--29 years in the practice of law as a 
litigator representing people in court and in arbitration equally. I 
represented plaintiffs and defendants both, frequently individuals, 
often businesses, always small to medium-sized businesses, and 
occasionally a local government or two, never a big company.
  I have had clients who didn't want to have arbitration agreements 
enforced and sometimes I could defeat them or have them modified or 
change the results of them because the arbitrator had manifested 
disregard for the law. Sometimes I had clients who wanted to enforce 
those agreements. It depends on the circumstances.
  But I can tell you it is not a tool that is uniformly bad. Although I 
have voted for accepting enforceable arbitration agreements, 
arbitration clauses involving sexual harassment and sexual assault 
cases, I don't believe that throwing the baby out with the bath water 
is a good idea. It is a terrible idea.
  Let me let America in on the inside scoop. Here is what this is 
about. For the past, roughly, decade there have been a series of cases 
in the United States Supreme Court in which, through various efforts 
and methods, plaintiffs' class action lawyers, lawyers for big class 
litigation where they make millions and millions in fees, have tried 
various approaches to get the United States Supreme Court to allow 
class actions to be pursued through arbitration, and they have failed. 
That is why this bill is here.
  The bill is to reverse the result of that decade of litigation in the 
Supreme Court in order for class action lawyers to be able to have a 
field day and to make a lot of money. This bill protects and seeks the 
fortune of plaintiffs' class action lawyers, and of course, it protects 
the patronage of big unions both at the same time. That is what the 
bill is about.
  Madam Speaker, for that reason, I urge my colleagues to oppose this 
bill, and I yield back the balance of my time.
  Ms. ESHOO. Madam Speaker, in today's economy, signing up for digital 
services often requires us to agree to lengthy terms and conditions 
that many users likely ignore and then

[[Page H3797]]

unknowingly sign away certain rights such as filing a lawsuit or 
joining a class action. The Forced Arbitration Injustice Repeal (FAIR) 
Act addresses this rampant abuse of our legal system by banning 
mandatory pre-dispute arbitration clauses in employment, consumer, and 
civil rights cases.
  These forced arbitration clauses are increasingly found in consumer 
contracts, requiring users to waive their right to sue in a court of 
law and instead resolve any disputes through arbitration. Because 
arbitration is secretive, lacks important due process protections, and 
produces decisions that cannot be appealed, it too often shields bad 
actors from accountability and prevents consumers from enforcing their 
rights in our justice system.
  Many consumer contracts that include forced arbitration clauses 
empower companies to collect unseemly amounts of data from their users 
and abuse that data for profit. The problem is acute in highly 
concentrated industries where corporations wield significant market 
power because consumers often have little or no alternative to these 
anti-consumers contracts. This model of what's been labeled 
``surveillance capitalism'' is bolstered by forced arbitration clauses 
that ensure the most egregious abuses of consumer data cannot be 
challenged in court. My legislation to protect consumer privacy, the 
Online Privacy Act, bars the use of forced arbitration clauses in user 
agreements about privacy for this reason.
  No one should be required to sign away their right to access our 
justice system when they sign up for a credit card, cell phone plan, or 
social media account. The FAIR Act is critical legislation to protect 
the rights of consumers, particularly regarding online privacy. I'm 
proud to be a cosponsor of this important legislation, and l urge my 
colleagues to vote for it.
  The SPEAKER pro tempore. All time for debate on the bill has expired.


               Amendment No. 1 Offered by Mr. Fitzgerald

  The SPEAKER pro tempore. It is now in order to consider amendment No. 
1 printed in House Report 117-273.
  Mr. FITZGERALD. Madam Speaker, I have an amendment at the desk.
  The SPEAKER pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:
       Page 6, strike lines 16 through 25.
  The SPEAKER pro tempore. Pursuant to House Resolution 979, the 
gentleman from Wisconsin (Mr. Fitzgerald) and a Member opposed each 
will control 5 minutes.
  The Chair recognizes the gentleman from Wisconsin.
  Mr. FITZGERALD. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, instead of setting one standard and having everyone 
play by the same rules, the Democrats have singled out the unions for 
favorable treatment.
  This legislation bans predispute arbitration for nonunion employees 
while preserving these benefits for union employees. This discrepancy 
makes no sense and, unfortunately, smacks of political favoritism.
  Arbitration offers a faster and cheaper path to resolution of a 
dispute. Taking this path away from nonunion employees leaves these 
workers to the mercy of--like we said earlier--the high-priced trial 
lawyers, while union workers maintain the benefit of arbitration.
  My amendment would remove this carve-out for union employees and 
restore parity between union and nonunion workers.
  My colleagues on the other side of the aisle already shut down my 
amendment to limit attorneys' fees to a reasonable amount so that 
consumers are protected. I am disappointed by that. They also rejected 
my amendment to reduce the cost of this bill by exempting contracts for 
critical supplies that have been affected by the Biden administration's 
supply chain crisis.
  Madam Speaker, I urge all my colleagues to support this commonsense 
amendment to protect workers, and I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I claim the time in opposition to the 
amendment.
  The SPEAKER pro tempore. The gentleman from New York is recognized 
for 5 minutes.
  Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I rise in strong opposition to this amendment, which 
would significantly weaken this legislation and damage the collective 
bargaining process for tens of millions of working Americans.
  We have said it over and over again today--this bill is not designed 
to eliminate arbitration. While my Republican colleagues would like you 
to believe that the FAIR Act will end arbitration entirely, that is 
simply not true.
  The FAIR Act would put an end to forced arbitration--arbitration that 
is not willingly agreed to by both sides, which is a predatory one-
sided practice created by and for huge corporations to allow them to 
get away with abusive conduct. It is a system that can exist only when 
these companies can take advantage of a stark power imbalance between 
themselves and workers, consumers, and small businesses.
  Labor unions correct that power imbalance. The collective bargaining 
process provides real protections that are unavailable to nonunion 
workers by forcing big businesses to compromise with skilled 
negotiators focused on improving terms for their workers.
  Collective bargaining guarantees other important protections in the 
arbitration process, such as truly neutral arbitrators, better 
procedures, transparent decisionmaking, and the option to appeal 
decisions. It creates a system that can actually resolve disputes 
quickly, efficiently--and most important--fairly for all parties 
involved.
  That is not forced arbitration precisely because it is truly 
voluntary. Arbitration only works when two parties of equal bargaining 
power can negotiate terms that work for everyone involved, which is 
exactly what happens when a labor union and a corporation establish a 
collective bargaining agreement.
  That is completely different than forced arbitration of nonunion 
employment disputes where an employee is forced to accept an 
arbitration clause that is buried deep inside the fine print of a stack 
of confusing paperwork on a take-it-or-leave-it basis that they must 
sign to get a job.
  The big corporations love this system because it forces their 
workers, it forces employees, it forces the purchasers of products to 
go to forced arbitration, and that is an inherently skewed process. 
That is why the employee loses 98 percent of the forced arbitrations. 
The employer wins 98 percent of the forced arbitrations. That is not a 
fair process.
  Moreover, as my colleague, Congressman Perlmutter, made clear during 
the Rules Committee meeting on this bill, nothing in the FAIR Act 
prevents individual workers from deciding to vindicate their rights 
before a jury.
  As the plain language of the bill states, no collectively bargained 
arbitration provision ``shall have the effect of waiving the right of a 
worker to seek judicial enforcement of a right arising under a 
provision of the Constitution of the United States, a State 
constitution, or a Federal or State statute, or public policy arising 
therefrom.''
  In other words, this amendment is a solution in search of a problem 
that could upend the rights of millions of workers today. Madam 
Speaker, I urge my colleagues to oppose this amendment, to vote for the 
bill, and I reserve the balance of my time.
  Mr. FITZGERALD. Madam Speaker, I inform the gentleman from New York 
that we have no further speakers, and I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I yield 1 minute to the distinguished 
gentlewoman from Texas (Mrs. Fletcher).
  Mrs. FLETCHER. Madam Speaker, I rise today in support of the FAIR 
Act. I have heard some of the debate in this Chamber today, and as a 
litigator, I disagree.
  The FAIR Act is about restoring justice for the American people. It 
is for consumers, it for workers, it is for small business people, it 
is for people whose civil rights have been violated, it is for millions 
of Americans who are denied their right to seek justice and 
accountability because of forced arbitration.
  There is certainly a role for arbitration of disputes and other forms 
of alternative dispute resolution in our system of justice. I know this 
from my own experience representing individuals and organizations in 
the courts and before arbitrators.
  The FAIR Act is important because it recognizes the role arbitration 
can play in resolving disputes between willing parties while it 
recognizes the fundamental rights of the people who have

[[Page H3798]]

been subjected to arbitration agreements without their true consent.
  The FAIR Act protects the freedom to contract, the freedom of choice, 
and the freedom granted in our Constitution, including the Seventh 
Amendment.
  Madam Speaker, for these reasons, I urge my colleagues to vote 
``yes.''

                              {time}  1330

  Mr. NADLER. Madam Speaker, I reserve the balance of my time, and I am 
prepared to close.
  Mr. FITZGERALD. Madam Speaker, I would simply urge my colleagues to 
support this amendment, and I yield back the balance of my time.
  Mr. NADLER. Madam Speaker, I yield myself the balance of my time.
  Madam Speaker, there are over 60 million workers--a majority of 
nonunion private-sector employees--who are subject to forced 
arbitration clauses. According to the Economic Policy Institute, that 
number will be over 80 million by 2024. Those employees are told that 
if they want to get a job or keep their current job they must sign away 
their right to their day in court and submit to a forced arbitration 
agreement. In most cases they do not have a choice.
  When these workers seek to hold their employers to account for wage 
theft, civil rights abuses, or racial discrimination, they are shoved 
into a secretive arbitration process designed by corporations with 
almost unlimited resources, and they lose 98 percent of the time. That 
is what the FAIR Act will fix. This legislation will restore these 
workers' access to our justice system and guarantee their 
constitutional rights by ending forced arbitration.
  This amendment would do nothing to protect workers while undermining 
this important legislation.
  Madam Speaker, I urge my colleagues to oppose this unnecessary and 
harmful amendment, and I yield back the balance of my time.
  The SPEAKER pro tempore. Pursuant to the rule, the previous question 
is ordered on the bill and on the amendment offered by the gentleman 
from Wisconsin (Mr. Fitzgerald).
  The question is on the amendment.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. FITZGERALD. Madam Speaker, on that I demand the yeas and nays.
  The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution 
8, the yeas and nays are ordered.
  Pursuant to clause 8 of rule XX, further proceedings on this question 
are postponed.
  Pursuant to clause 1(c) of rule XIX, further consideration of H.R. 
963 is postponed.

                          ____________________