Can Opt-Out Provisions Save Arbitration Clauses?

Law360, New York (June 8, 2016, 12:49 PM EDT) -- It is no secret arbitration clauses are under attack. During the fall of 2015, The New York Times ran a three-part series detailing alleged injustices visited upon consumers by corporations using arbitration clauses. On May 5, 2016, the Consumer Financial Protection Bureau proposed a rule designed to eliminate mandatory arbitration clauses from consumer agreements covering financial products and services. And, state courts across the country have arguably increased scrutiny on the enforcement of arbitration clauses.[1]

One reason for the controversy: Backed by U.S. Supreme Court precedent, companies have successfully enforced class action waivers that are written into their arbitration clauses.[2] These...

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