集体排除和不可达仲裁:数据、不披露和公众知识

J. Resnik, Stephanie Garlock, Annie Wang
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引用次数: 2

摘要

当法院强制执行仲裁命令时,法学家将自己描述为尊重个人签订合同的自主权,将索赔人引向比裁决更方便的程序。但这些理由与商品和服务提供者以及雇主的做法是分离的。这些公司既不向个人提供有关争议解决机制的选择,也不欢迎交换有关仲裁经验的信息。相反,公司有义务进行仲裁并设定条款。除了越来越普遍地禁止在任何论坛上采取联合和集体行动外,许多供应商和雇主还通过指示个人不得披露索赔内容、不得使用仲裁或不得披露结果,寻求建立一个沉默之圈。但正如我们在这篇文章中所记载的,在过去十年中,很少有人在仲裁中提出索赔。既然在排除集体诉讼方面取得了成功,而且诉讼很少,为什么市场参与者还在寻求让少数进行仲裁的人闭嘴呢?法院能强制执行这些命令吗?在本文中,我们通过传播有关仲裁规则和使用的信息来打断这些沉默规定。我们追踪了限制仲裁信息的努力,概述了不断增长的保密法律体系,并分析了消费者使用仲裁的数据。正如我们所述,一些法学家认为保密义务是不可执行的。然而,尽管条款起草者获得了“重复参与者”的优势,他们可以获得一次性参与者所没有的信息,但许多决定还是默许了这些条款的实施。除了可以从判例法中收集到的关于使诉讼当事人沉默的信息外,我们还挖掘了美国仲裁协会(AAA)发布的材料,该协会遵守州法规,要求消费者仲裁的管理者公开提交的索赔数量和结果。出现的情况是,在使用服务和产品的数百万人中,几乎没有人提出个人仲裁要求。由于AT&T成功地说服了美国最高法院强制执行集体诉讼禁令,并要求索赔人使用AAA,我们研究了针对AT&T的仲裁文件。在2009年至2019年期间,当AT&T无线服务的客户群从8500万到1.65亿不等时,每年约有90人提出仲裁请求。现有数据还提供了一种见解,即在索赔水平非常低的情况下,服务提供商为什么试图让少数仲裁用户保持沉默。律师事务所和其他整合者已经开始了一个事实上的集体诉讼市场,他们将针对个别供应商的类似索赔捆绑在一起。而且,在法院和仲裁之外,消费者集体行动可以通过将信息公开来寻求补救,从而影响购买决策,并迫使服务提供商和雇主改变行为。通过捆绑商的偶发申请,政府监管机构在关注消费者保护时提出的索赔,以及通过网络帖子建立联系都是重要的途径。但是,目前的法律环境并没有为那些受到伤害但不了解自己的伤害或与聚合器有联系的消费者提供系统的途径。程序私有化和不披露的任务使处境类似的个人无法了解获得补救的可能性和无法共用律师。此外,通过案例或成文法以及关于权利和救济的公开辩论来发展法律,也因信息不足而受到阻碍。简而言之,在经历了几十年通常被称为“集体诉讼战争”的冲突之后,我们现在处于“信息战争”中,充满了强制沉默的积极努力,我们认为,法律应该拒绝这种沉默。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Collective Preclusion and Inaccessible Arbitration: Data, Non-Disclosure, and Public Knowledge
When courts enforce mandates to arbitrate, jurists describe themselves as respecting the individuals’ autonomy to enter into contracts that route claimants to a process that is more user-friendly than adjudication. But those rationales are disjunctive with the practices of providers of goods and services and of employers. These companies neither offer individuals choices about dispute resolution mechanisms nor welcome the exchange of information about experiences with arbitration. Instead, companies impose obligations to arbitrate and set the terms. In addition to the increasingly commonplace bans on joint and collective actions in any forum, many providers and employers also seek to mandate a cone of silence by instructing individuals not to disclose the content of claims, the use of arbitration, or the outcomes. But as we document in this Article, during the last decade, very few individuals filed claims, single-file, in arbitration. Given the success in precluding class actions and the rarity of filings, why are market actors seeking to silence the few who do arbitrate? And are such mandates enforceable by courts? In this Article, we interrupt these silencing provisions through disseminating information about the rules of and use of arbitration. We track efforts to limit information about arbitration, outline the growing body of law on non-disclosure, and analyze the data about consumer use of arbitration. As we recount, some jurists have held non-disclosure obligations unenforceable. Yet many decisions condone their imposition despite the repeat-player advantages that accrue to the clauses’ drafters, who have access to information that one-shot participants do not have. In addition to information about efforts to silence litigants that can be gleaned from the case law, we have also mined materials posted by the American Arbitration Association (AAA), which has complied with state statutes requiring administrators of consumer arbitration to make accessible the number of claims filed and the results. The picture that emerges is that, of the millions of people using services and products, virtually none file individual arbitration claims. Because AT&T succeeded in persuading the U.S. Supreme Court to enforce bans on collective action and require claimants to use the AAA, we researched arbitration filings against AT&T. Between 2009 and 2019, when the AT&T wireless services customer base ranged from 85 to 165 million, about 90 individuals a year filed an arbitration claim. The available data also provide insight into why, given that remarkably low level of claims, providers of services seek to silence the few who are arbitration users. Law firms and other aggregators have begun a market in de facto collective actions by bundling similar claims against individual providers. And, outside of courts and arbitration, collective consumer action can seek remedies by putting information into the public realm that can affect purchasing decisions and press for changes in the behavior of service providers and employers. Episodic filings through bundlers, claims pursued by government regulators when focused on consumer protection, and networking through web posts are important avenues. But the current legal landscape does not provide systematic access for consumers who have been harmed but lack knowledge of their injuries or connections to aggregators. The privatization of process and non-disclosure mandates prevent similarly-situated individuals from learning about the potential to obtain redress and from sharing lawyers. Moreover, the development of law through cases or statutes and public debates about rights and remedies are stymied by information deficits. In short, after decades of conflicts often termed “class action wars,” we are now in the “information wars,” replete with energetic efforts to mandate silence that, we argue, law should rebuff.
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