Forced Arbitration Injustice Repeal Act

Floor Speech

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Mrs. FLETCHER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chair, I offer this amendment to the bill for the simple purpose of clarifying its scope and applicability.

The FAIR Act prohibits the enforcement of mandatory pre-dispute arbitration provisions--forced arbitration--in contracts involving consumer, employment, antitrust, and civil rights disputes.

This amendment makes clear that the FAIR Act applies to pre-dispute forced arbitration in these disputes, and not to voluntary arbitration that is agreed to by the parties in these cases after a dispute occurs.

It does not apply, as some have suggested, to commercial cases between businesses; it does not eliminate arbitration altogether, and there are good reasons for this.

There is certainly a role for the arbitration of disputes and other forms of alternative dispute resolution. From my own experience as a lawyer, I understand the utility arbitration can provide for businesses to resolve disputes, especially in the context of an ongoing business relationship.

That is not what the FAIR Act is about. The FAIR Act is about restoring access to justice for the people.

It is for consumers and workers.

It is for people whose civil rights have been violated.

It is for the small business people who have antitrust claims.

It is for the millions of Americans who are denied their rights to seek justice and accountability today because of forced arbitration.

This amendment makes clear that the act does not prohibit the option to participate in arbitration after a dispute has arisen provided that the agreement to arbitrate the dispute is voluntary and the parties actually consent.

This amendment anticipates that, for reasons of their own choosing, some parties may elect to participate in arbitration after a dispute has arisen on a voluntary basis and this act does not prohibit that choice. The amendment acknowledges the right to consent, but it must be truly voluntary.

When an agreement to arbitrate is a contract of adhesion, it is not voluntary. When an agreement to arbitrate is not disclosed, it is not voluntary. When an agreement to arbitrate is a condition of employment, it is not voluntary. When an agreement to arbitrate is forced, it is not voluntary. But when actual consent is given after a dispute arises, parties with full knowledge may choose to arbitrate.

Fundamentally, the FAIR Act and this amendment protects the freedom to contract, the freedom of choice, and the freedoms granted in our Constitution including, importantly, its 7th Amendment.

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Mrs. FLETCHER. Mr. Chair, the gentleman from North Dakota's argument makes the argument for the FAIR Act, because the essential point there is about the ability to contract with equal bargaining power.

And we have heard debate this entire morning about the imbalance that exists with these contracts of adhesion, these contracts that require arbitration as a term of employment, and that there is also somebody who benefits.

And I think what we have seen is exactly what the FAIR Act is designed to prevent. The idea of equal bargaining power is not something we see in these consumer cases, in these employment cases, and that is exactly what we are here to protect.

However, we have also seen the argument that this is the end of arbitration, and that is simply not the case. There is a place in our system for people who elect to arbitrate, but it must be with equal bargaining power, and it must be with full information and voluntary compliance.

The amendment simply makes clear that the FAIR Act does not prohibit arbitration on a voluntary basis after a dispute arises and can't be construed to do so.

Mr. Chair, it is for these reasons that I urge my colleagues to support the amendment, and I yield back the balance of my time.

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