No reliance Cannot challenge for fraudulent inducement like SC has said if you draft everything right, you are free and clear Other Defenses Imputed notice is not a defense (Ojeda de Toca) Can’t waive the DPTA, and acceptance of defective performance doesn’t prevent you from making a DTPA claim (waiver/estoppel) (Kennemore) P has a duty to mitigate damages (Gunn Infiniti) Alternate Dispute Resolution Mediation: less involved, don’t generally give an opinion, doesn’t force you to do anything, probably 98% of all cases will have had mediation Arbitration: binding decision, have a K that says someone else will make the binding decision, private justice system, K usually says which company (AAA American – arbitration association) Arbitration Why arbitration? Efficient and lower cost How does it work Federal Arbitration Act recognized arbitration (applies when there is a written K requiring arbitration) Selection: exclude people, you don’t pick people (like striking a jury) Procedures: also part of K or part of organization, usually very informal, not a judge not bound by rules of law or rules of court or procedure – Cost: was less expensive, today it is extremely expensive Consequences No jury, no law, no appeal. Everything is final. Generally everything is secret – no requirement for written opinion. DTPA claims are subject to arbitration. Ct says arbitration doesn’t waive your rights, it is “just another forum” (Anglin, one of the first Tx cases, 1992) Severability Buckeye, payday loan, under FL law the K was void but K contained an arbitration clause As a matter of federal law an arbitration provision is from the rest of the K severable If challenge is to the arbitration clause itself, Ct hears the case If challenge is to the contract’s validity, suit is considered by the arbitrator These rules apply to state as well as federal courts Only way to challenge an arbitration clause is to say the clause is unenforceable (i.e. unconscionable)
No reliance Cannot challenge for fraudulent inducement like SC has said if you draft everything right, you are free and clear Other Defenses Imputed notice is not a defense (Ojeda de Toca) Can’t waive the DPTA, and acceptance of defective performance doesn’t prevent you from making a DTPA claim (waiver/estoppel) (Kennemore) P has a duty to mitigate damages (Gunn Infiniti) Alternate Dispute Resolution Mediation: less involved, don’t generally give an opinion, doesn’t force you to do anything, probably 98% of all cases will have had mediation Arbitration: binding decision, have a K that says someone else will make the binding decision, private justice system, K usually says which company (AAA – American arbitration association) Arbitration Why arbitration? Efficient and lower cost How does it work Federal Arbitration Act recognized arbitration (applies when there is a written K requiring arbitration) Selection: exclude people, you don’t pick people (like striking a jury) Procedures: also part of K or part of organization, usually very informal, not a judge – not bound by rules of law or rules of court or procedure Cost: was less expensive, today it is extremely expensive Consequences No jury, no law, no appeal. Everything is final. Generally everything is secret – no requirement for written opinion. DTPA claims are subject to arbitration. Ct says arbitration doesn’t waive your rights, it is “just another forum” (Anglin, one of the first Tx cases, 1992) Severability Buckeye, payday loan, under FL law the K was void but K contained an arbitration clause As a matter of federal law an arbitration provision is severable from the rest of the K If challenge is to the arbitration clause itself, Ct hears the case If challenge is to the contract’s validity, suit is considered by the arbitrator These rules apply to state as well as federal courts Only way to challenge an arbitration clause is to say the clause is unenforceable (i.e. unconscionable)
aldermanconsumerlaw2010.docx