[Congressional Record Volume 165, Number 152 (Friday, September 20, 2019)]
[House]
[Pages H7840-H7853]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FORCED ARBITRATION INJUSTICE REPEAL ACT
General Leave
Mr. CICILLINE. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days in which to revise and extend their remarks and
insert extraneous material on H.R. 1423, Forced Arbitration Injustice
Repeal Act, or the FAIR Act.
The SPEAKER pro tempore (Mr. Blumenauer). Is there objection to the
request of the gentleman from Rhode Island?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 558 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 1423.
The Chair appoints the gentlewoman from Illinois (Ms. Underwood) to
preside over the Committee of the Whole.
{time} 0912
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 1423) to amend title 9 of the United States Code with respect to
arbitration, with Ms. Underwood in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
General debate shall be confined to the bill and shall not exceed 1
hour equally divided and controlled by the chair and ranking minority
member of the Committee on the Judiciary.
[[Page H7841]]
The gentleman from Rhode Island (Mr. Cicilline) and the gentleman
from Georgia (Mr. Collins) each will control 30 minutes.
The Chair recognizes the gentleman from Rhode Island.
Mr. CICILLINE. Madam Chair, I yield myself such time as I may
consume. Madam Chair, I rise in strong support of H.R. 1423, the Forced
Arbitration Injustice Repeal Act, or the FAIR Act.
Buried deep within the fine print of everyday contracts, forced
arbitration deprives American consumers and workers of their day in
court when they attempt to hold corporations accountable for breaking
the law. This private system lacks the procedural safeguards of our
justice system. It is not subject to oversight, has no judge or jury,
and is not bound by laws passed by Congress or the States, but it has
become a requirement of everyday life. Consumers and workers must
surrender their rights to corporations through forced arbitration
clauses, which are unilaterally imposed by companies before disputes
even arise.
When forced arbitration is combined with nondisclosure agreements, it
effectively silences the victims of rampant corporate misconduct. This
shameful, humiliating, and corrupt system has isolated and silenced
people who are ultimately deprived of their right to hold wrongdoers
accountable through their day in court.
Few instances of this silencing effect are as stark and disturbing as
the experiences of victims of sexual harassment and assault, who are
routinely exploited by forced arbitration.
Forced arbitration has also eroded the fundamental rights of our
Nation's men and women in uniform, veterans, and their families. These
brave Americans have sacrificed much in service to our country. They
have fought to protect the fundamental idea that we are a Nation of
laws and institutions that guarantee the rights to every American and
that every American should have the freedom to enforce these rights
meaningfully.
But for too long, arbitration has eroded these fundamental
protections by forcing servicemembers' claims into a private system set
up by corporations. The Military Coalition, which represents 5.5
million current and former servicemembers, The American Legion, and 29
other military service organizations, notes that forced arbitration has
funneled the claims of servicemembers, veterans, and their families
into ``a rigged, secretive system in which all the rules, including the
choice of the arbitrator, are picked by the corporation.''
{time} 0915
Let me give an example. Lieutenant Commander Kevin Ziober, who
testified in support of the FAIR Act earlier this year, has served in
the U.S. Navy Reserves since 2008, but in the fall of 2012, he was
called into Active Duty for deployment to Afghanistan.
Kevin notified his employer and conveyed his desire to resume work
upon his return, but after over 2 years with the company, on the last
day of work, right before his deployment to Afghanistan, following a
farewell party with a big cake with a symbol of the United States flag
on it, he was fired by his employer for serving his country.
When he tried to hold his employer accountable for violating his
rights under USERRA, his company forced his claim into arbitration,
citing an arbitration clause in Kevin's employment contract that he was
required to sign 6 months into his employment waiving his
constitutional right to a jury trial.
This outrageous practice is nothing short of a corporate takeover of
our Nation's system of laws, and the American people have had enough.
The overwhelming majority of voters, including 83 percent of Democrats
and 87 percent of Republicans, support ending forced arbitration. It is
time to act.
H.R. 1423, the FAIR Act, does just that. This important legislation
ends the use of forced arbitration in everyday consumer, employment,
antitrust, and civil rights abuses. It is supported by a broad
coalition of groups dedicated to advancing the rights of women,
servicemembers, veterans, consumers, and hardworking Americans.
Madam Chair, I reserve the balance of my time.
Mr. COLLINS of Georgia. Madam Chair, I yield myself such time as I
may consume.
I rise in opposition to the bill and will speak to that.
Arbitration--let's go back to some basics here--provides consumers a
simpler, cheaper, faster path to justice than does the judicial system.
That is what the evidence showed the last time the Judiciary Committee
performed oversight of the arbitration system during the 111th
Congress, and that is what the evidence showed earlier this term when
we renewed oversight in the Subcommittee on Antitrust, Commercial and
Administrative Law.
In fact, the evidence in favor of preserving access to arbitration
has only increased over time. Companies are continuing to improve the
fairness of arbitration agreements and have long been following
improved arbitration protocols to help assure due process is given to
claimants against them.
The market resolved problems in consumer credit arbitrations
considered during the 110th and 111th Congresses. A string of new
Supreme Court decisions has demonstrated the Court's confidence in the
arbitration system.
Even the Consumer Financial Protection Bureau's 2015 study of
arbitration highlighted problems consumers would face if they had no
access to arbitration but, instead, had to rely on flawed judicial
class actions. The study shows the rise of predispute, mandatory
binding arbitration agreements in consumer settings did not come out of
nowhere. It stems directly from the repeated abuses of class actions
that have plagued the judicial system in recent decades.
That is not to say that the arbitration system is perfect, but the
arbitration system is generally good and should be preserved.
Unfortunately, that is not what the forced injustice repeal act would
do. Rather than preserve and strengthen arbitration, it would wipe it
out for enormous numbers of consumer and employment disputes, as well
as many civil rights and antitrust disputes.
What that would do is not end injustice, but it would actually
promote it. Because what happens when everyday consumers and employees
are denied rights to arbitrate, rights their contracts guarantee them?
In far too many cases, it means Americans will be shut out of the
justice system entirely.
If their claims are small enough for small claims court, there may be
an option. In 46 States and the District of Columbia, however, small
claims courts only take claims worth $10,000 or less; 30 of those
jurisdictions limit it to $5,000 or less.
Millions of claimants with cases worth amounts not much more than
those ceilings will never be able to pay the courtroom lawyers enough
to take their cases to ordinary trial courts.
Maybe if the claimants could qualify as plaintiffs in a class action,
they could join those actions. Millions more will not. And even those
who do can expect to get nothing in return but a postcard telling them
they have won a few dollars and cents on a coupon.
Meanwhile, class action plaintiffs' trial lawyers will reap
multimillion-dollar shares in fees from the recoveries they dole out to
plaintiff class members at mere pennies on the dollar.
If you ask me, it would be better to call this bill the forced class
action injustice guarantee act today.
Rather than wipe out arbitration, we should consider ways to make it
better; and, while we do that, we should do everything we can to reform
the abuse of the class action system.
Senate Judiciary Chairman Graham suggested that we ought to do just
that at a Senate Judiciary Committee hearing on arbitration earlier
this year, and he was exactly right. The worst result Congress could
deliver to the American people would be to wipe out access to
arbitration while leaving them no alternative but an unreformed
judicial system.
Before I yield back, Madam Chair, this is something that is
disturbing to me, because this is a bill that my gentleman friend just
stated there is a list of horribles here, there is a list of horribles
of abuse, sexual abuse, military.
All of these could have been addressed if we had sat down, as a
Congress should do, as I told the chairman during the markup: Mr.
Chairman, if we would have just sat down and talked about the issues
facing us, we wouldn't be facing a veto threat from
[[Page H7842]]
anywhere, we wouldn't be facing a Senate that is not going to take this
up, and we could have found a bill that would not have had to have a
rule. It could have been on suspension. Because we could have found the
ways to fix the arbitration system, make sure that there is access, and
protect those who need protecting without putting a partisan bill on
the floor that simply will take people out of the system instead of
including them, but be very profitable for those who do class action
lawsuits.
Let's be honest about what is happening here. We are taking people
out of the system, not putting them in. We are not really protecting
them; we are actually hurting them. And this is the issue that could
have been fixed with a true working Congress, in a true working
committee. We just don't have that right now, and that is sad. That
makes us all the worse in doing this.
Madam Chair, I reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I would just remind the gentleman that
this is a bipartisan piece of legislation, and the most recent polling
shows 87 percent of Republicans and 83 percent of Democrats support it.
So it is broadly bipartisan all across the country. It is bipartisan in
terms of its introduction and sponsorship. It is just not bipartisan in
the Republican caucus, apparently.
Madam Chair, I yield 2 minutes to the gentleman from Georgia (Mr.
Johnson). He is not only a distinguished Member; he is the lead sponsor
and author of the FAIR Act.
Mr. JOHNSON of Georgia. Madam Chair, it is strange, because my
friends on the other side of the aisle are not interested in working on
anything together. They are only interested in giving tax cuts to the
top 1 percent and the big corporations, and they are interested in
privatizing everything. And a privatized justice system is the ultimate
injustice, and that is what forced arbitration is all about.
The FAIR Act would restore justice to millions of Americans.
We are a country of justice and fair play. When people cheat, we take
pride in holding them accountable before a jury in a court of law; but
forced arbitration clauses hidden in the fine print deprive victims of
their day in court before a jury of their peers.
Using forced arbitration, corporations force victims into secret
proceedings where the deck is stacked against them. Predictably, the
end result is the corporation wins, and the victim is deprived of
justice.
And because the proceeding is secret, the public never learns what
happened. We won't know which corporation tolerates a climate and a
culture of sexual harassment of its employees or which corporation
fraudulently overcharges its customers or which nursing home has a
sordid history of mistreating its patients.
For too long, people have been tricked by complicated legal jargon
hidden in take-it-or-leave-it contracts. People like Diana, from my
home State of Georgia.
Diana, after 5 years at Kay Jewelers, learned she was making less
than her more recently hired, less experienced male colleagues; but
because of her forced arbitration clause she was tricked into signing,
she couldn't get the backpay that she deserved. She is one of millions
of victims who have been denied justice because they unwittingly signed
away their right to take a wrongdoer to court.
It is not fair and it is not right. If you believe in consumer
rights, then you should support the FAIR Act.
The CHAIR. The time of the gentleman has expired.
Mr. CICILLINE. Madam Chair, I yield an addition 30 seconds to the
gentleman.
Mr. JOHNSON of Georgia. Madam Chair, if you believe in consumer
rights, then you should support the FAIR Act; and if you believe in
justice and the rule of law, then you should vote to pass the FAIR Act.
Madam Chair, I want to thank my colleagues who have worked so hard to
support this bill--Congressman Cartwright, Congressman Cicilline,
Congressman Raskin, Congresswoman Jayapal, and, last but not least,
Chairman Nadler--for their work in getting this bill to the brink of
passage today.
Mr. COLLINS of Georgia. Madam Chair, yes, it is me, and I do speak
truth here, and I will acknowledge there is one Republican cosponsor of
this bill. It is bipartisan in that regard. However, it could have had
100 or more Republican cosponsors if we would have actually done
legislation.
Instead, my gentle friend from Georgia just gets up and repeats trite
statements about what Republicans want to do and what Republicans don't
want to do. That is the problem we have right here. That is the
problem, why we don't have legislation that actually works and will
actually get signed and put into law.
Remember, a bill that only comes through one part and cannot get
through to get a President's signature is simply a political statement.
That is what we are doing today.
Madam Chair, I yield the balance of my time to the gentleman from
North Dakota (Mr. Armstrong) so he may manage the remainder of the
time.
Mr. ARMSTRONG. Madam Chair, I reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I yield 1 minute to the gentlewoman from
Georgia (Mrs. McBath), who has been a fierce advocate for workers and
consumers.
Mrs. McBATH. Madam Chair, I rise in support of the FAIR Act, a
bipartisan bill introduced by my friend and fellow Georgian,
Congressman Johnson.
I am proud to cosponsor this bill which will help small businesses by
ending the use of forced arbitration. These tiny clauses hidden in the
fine print are used to trick rising entrepreneurs in their dealings
with sophisticated conglomerates.
Small businesses need to sign contracts for phone plans, credit
cards, and rental cars, but too often, lurking in the fine print, a few
words can cost them their constitutional right to their day in court.
With this bill, our entrepreneurs can focus on growing their businesses
and investing in our communities.
Madam Chair, I ask my colleagues to join me in supporting this bill.
Mr. ARMSTRONG. Madam Chair, I want to quote Justice Breyer in a
Supreme Court opinion:
The typical consumer who has only a small damage claim, who
seeks, say, the value of only a defective refrigerator or
television set would be left without any remedy but a court
remedy, the costs and delays of which could eat up the value
of an eventual small recovery.
Madam Chair, I yield 3 minutes to the gentleman from California (Mr.
McClintock), my friend.
Mr. McCLINTOCK. Madam Chair, this bill purports to assert a very
important constitutional right: the right to trial by jury in civil
actions. But it does this by denying another very important
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 mutually advantageous to waive their
right to civil jury trials in any disputes between them in favor of
simpler, cheaper, and faster arbitration.
Now, the proponents tell us that it is an uneven playing field and
this requirement is often imposed in nonnegotiable, take-it-or-leave-it
propositions. First of all, 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
terms, and I am taking my business elsewhere.
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 my
right to make that decision for myself without somebody in government
making it for me.
Now, remember, an arbitration provision binds both sides. 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 an inexpensive alternative that the company must
abide by. This bill takes that protection away from me.
[[Page H7843]]
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 if they went through the
civil courts in 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 higher cost of
litigation into their business models, and, meanwhile, it denies
consumers and employees the freedom to choose a much simpler and less
expensive way to resolve their disputes.
{time} 0930
Mr. CICILLINE. Madam Chair, I yield myself such time as I may
consume.
Madam Chair, my colleagues on the other side of the aisle have argued
that forced arbitration is cheaper or easier than litigation and that
consumers and workers should have a choice.
The FAIR Act doesn't take away anybody's choice. It restores choice.
It restores choice that has been taken away from the American people by
big corporations that don't want to face liability or public scrutiny
for their actions. This is a complete misrepresentation of what the
bill does.
The FAIR Act does not ban arbitration. It eliminates forced
arbitration that is imposed on everyday consumers and hardworking
Americans before a dispute even arises.
And the notion that you have a choice, most consumers don't even know
it is happening. When you check that box on the contract for your phone
or your cable, you have given away your right to have your claims
heard. It is very widespread in consumer employment contracts.
These clauses are hidden, very often, from consumers and workers.
They appear inside of envelopes and delivery boxes in the fine print of
privacy policies, which often span dozens of pages. In most cases,
people aren't even aware that they have signed away their right to a
day in court, simply by using everyday goods and services.
Companies still have the option to use arbitration, but only on a
voluntary basis after a dispute arises and not by unilaterally imposing
it on people by big corporate entities.
Madam Chair, I yield 1 minute to the distinguished gentleman from
Florida (Mr. Deutch), the distinguished senior member of the Judiciary
Committee.
Mr. DEUTCH. Madam Chair, I thank my friend from Rhode Island, a great
champion for consumers, for yielding.
Madam Chair, I rise in support of the FAIR Act to protect Americans
from forced arbitration agreements. These agreements, too often, are
the result of power imbalances that block claims from judicial remedies
in employment, consumer, antitrust, and civil rights disputes.
The FAIR Act is critical for protecting the rights of women, in
particular, who have faced gender discrimination and sexual harassment
in the workplace. We have all heard the disturbing reports of tens of
thousands of women employed at one large company who alleged that they
were paid less than their male colleagues. They were passed over for
promotions to management positions multiple times in favor of men with
less experience. They faced unwanted sexual advances and attempted
assault at company meetings. At least one Floridian was fired after she
reported one of her superiors tried to kiss and touch her against her
will.
Employees who face mistreatment deserve justice and they deserve
their day in court. Making forced arbitration a condition of employment
takes away their day in court and it frustrates the pursuit of justice.
The CHAIR. The time of the gentleman has expired.
Mr. CICILLINE. Madam Chair, I yield an additional 30 seconds to the
gentleman from Florida.
Mr. DEUTCH. Forced arbitration provisions strip employees of their
rights. They ensure that employees are no match for their employers
when it comes to reporting discrimination and harassment.
Today, this House of Representatives has the opportunity to restore
the rights of all workers to seek justice and public accountability.
Madam Chair, I urge my colleagues to support and pass the bipartisan
FAIR Act.
Mr. ARMSTRONG. Madam Chair, I yield myself such time as I may
consume.
Madam Chair, I agree with my friend from Florida; sexual assault
cases should never be a part of forced arbitration, ever, under any
circumstances.
The problem is, when we are doing that and moving into this, we are
also taking this huge swath of cases that don't qualify at the high
end, don't have enough money for class action lawsuits, but yet are too
big for small claims court.
The reality of those situations in any court system across the
country, is they are overworked, they are behind, and they are delayed.
But, most importantly, probably, if you are dealing with a contractual
lawsuit that doesn't have the ability to get treble or punitive
damages, and it is a small enough claim like a refrigerator or a
television, there is really no access because the cost of the lawyer
will make it prohibitive to go to court.
And the argument that this only allows choice doesn't really work
because the same reason you write a contract at the beginning of a
business relationship as opposed to when that relationship is
dissolving, is because you want to put terms in place before problems
arise. And the reason is when you go to arbitration in these types of
cases, one side will be so disadvantaged by arbitration they would
never agree to it.
But probably the most egregious part of this bill is the fact that we
are retroactively applying it to hundreds of thousands, if not
millions, of existing contracts. So things that were agreed to, either
employee-vendor or vendee relationships, now will be null and void and
we will be rewriting the rules of the game sometimes decades after it
has occurred.
So it is important to recognize that--and I would just end with
this--probably the most toxic area of law we have everywhere in the
country, is family law--and only in a place where you can be in
absolute love can you learn to hate somebody that bad--courts are
moving towards arbitration prior to dispute resolution in order to deal
with it. If anybody has ever dealt with that or practiced in that area
of law, there are reasons why this occurs, and it is so you can try to
arrange it.
I agree there are abuses. I agree with Ranking Member Collins that
there are plenty of things we could look at to do, but we cannot throw
the whole system out because you are going to have a broad swath of
cases that no longer have any legal access.
Madam Chair, I reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I would point out the family law cases
that my friend just referenced, of course, are voluntary arbitration
proceedings post dispute. This bill has nothing to do with that. This
is pre-dispute forced arbitration.
Madam Chair, I yield 1 minute to the distinguished gentlewoman from
Connecticut (Ms. DeLauro), a champion for women, and a Member of
Congress who has fought to be sure that women have their rights
vindicated against powerful corporations for a very long time.
Ms. DeLAURO. Madam Chair, forced arbitration is one of the central
ways that corporate America has rigged the system against middle class
families and working people. It undermines our democracy.
With forced arbitration, employers can force an employee to waive
their right to seek justice in court. They need to accept arbitration,
which is a private legal process, without a judge or a jury.
The Economic Policy Institute predicts that by 2024, 80 percent of
nonunion private sector workers will have lost their right to seek
justice in court.
With forced arbitration, working people lose the ability to file an
individual class action lawsuit if their rights are violated. They lose
the ability to hold bad acting employers to account in an open and
impartial forum. And they often lose in their fight for justice.
Let's level the playing field, restore justice for millions of
working people,
[[Page H7844]]
pass the FAIR Act, and prohibit forced arbitration agreements from
being valid or enforceable if they require arbitration of employment,
consumer, antitrust, or civil rights disputes. No one should have to
give up the right to justice. Let's pass the FAIR Act.
Mr. ARMSTRONG. Madam Chair, I have one real quick response,
particularly on family law.
The gentleman is correct; those are almost always post dispute. But
in a very significant amount of those cases, they are court ordered
arbitration, so I don't know how voluntary we would call it.
Madam Chair, I continue to reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I yield 1 minute to the gentlewoman from
California (Ms. Speier), perhaps Congress' strongest champion for
women, particularly women as it relates to their employers, and someone
who has been an advocate for this for a very long time.
Ms. SPEIER. Madam Chair, I thank the gentleman from Rhode Island for
that generous introduction.
Madam Chair, I can't believe that we are having this discussion today
because it is like there is a parallel universe.
I am going to talk about the 70,000 women of Sterling Jewelers. This
is Kay Jewelers, and this is Jared Jewelers. They have been subjected
to rampant sexism. And when they complained about it they were denied
justice by mandatory arbitration. Sterling's forced arbitration clause
has prevented them from seeking justice. It is more like, first you are
groped, then you are gagged. That is what forced arbitration is all
about.
Diana Acampora was pulled onto the lap of a manager who held her
tightly as he fondled her.
Tammy Zenner was nicknamed ``Texas Tammy'' by colleagues because of
the size of her breasts and told she should be flattered by an
executive rubbing himself on her.
Dawn Souto-Coons was passed over for promotions in favor of lewd and
less qualified men.
Diana, Tammy, Dawn, and countless others deserve justice.
The CHAIR. The time of the gentlewoman has expired.
Mr. CICILLINE. Madam Chair, I yield an additional 30 seconds to the
gentlewoman from California.
Ms. SPEIER. Instead, Sterling has made a mockery of our laws and has
used forced arbitration to make 70,000 women in this country subject to
a 14-year process. That is not justice. That is enslavement.
Mr. ARMSTRONG. Madam Chair, I continue to reserve the balance of my
time.
Mr. CICILLINE. Madam Chair, I yield 1\1/2\ minutes to the gentleman
from Pennsylvania (Mr. Cartwright), who has been a very important
champion of this legislation.
Mr. CARTWRIGHT. Madam Chair, I thank the gentleman from Rhode Island
for yielding.
Madam Chair, we have heard the stories, and we will continue to hear
them, of all of the employees and the consumers who have been tricked
into giving away their constitutional right to a jury trial to have
their rights enforced.
It doesn't really matter all the constitutional rights you have or
all the statutory rights that you have; if you don't have a right to
enforce these in court, all of your rights are washed away. So when
consumers and employees get tricked into signing away their right to go
to court, all of their rights are washed away.
We have heard the stories. And I wanted to add to the list the story
of Barbara Jones-Davis, who is 98 years old. She had glaucoma and
dementia. She was in a nursing home in northwest Philadelphia. They let
her wander. In violation of all their own policies, she wandered
outside. She wandered outside for more than 20 minutes. She went over a
15-foot precipice and fell to her death with a broken skull.
Her family got forced into arbitration. The nursing home didn't admit
responsibility. They forced her into one of these secret and rigged
arbitrations.
These things are unconstitutional. They take away your right to go to
court. This is a constitutional right that our Founding Fathers fought
and died for: that we would be able to resolve our disputes in court,
in open court, fairly chosen, not one of these secret and rigged
proceedings that is mandatory. It is forced because people got tricked
into them.
Madam Chair, let's all vote for the FAIR Act and restore our American
constitutional rights.
Mr. ARMSTRONG. Madam Chair, I yield myself such time as I may
consume.
Madam Chair, they are not unconstitutional. The Supreme Court has
explained that arbitration is usually cheaper and faster than
litigation. It can have simpler procedural and evidentiary rules,
normally minimizes hostility, and is less disruptive to ongoing and
future business dealings amongst the parties.
I think that is part of the issue here. I said this the other day in
committee, and I am probably going to say it more than anybody wants to
hear it, but hard cases make bad law. There are obviously issues. There
are issues of court systems being abused and there are issues of
arbitration being abused. But we have to remember that the vast
majority of these cases fall into those normal contract disputes,
employment disputes, business versus business disputes, or small dollar
level consumer disputes.
While you have a constitutional right to a jury trial in any State or
Federal court, depending on your action, you do not have a
constitutional right to be able to pay for that in a civil proceeding.
The cost of these types of cases just will naturally prohibit them from
being resolved in any way at all.
Madam Chair, I reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I yield 1 minute to the gentleman from
Virginia (Mr. Scott), the distinguished chair of the Education and
Labor Committee.
Mr. SCOTT of Virginia. Madam Chair, I thank Mr. Johnson, Mr.
Cicilline, and Chairman Nadler for their leadership on this issue.
Madam Chair, I rise in support of the Forced Arbitration Injustice
Repeal Act, or the FAIR Act.
Companies are increasingly using forced arbitration clauses to shield
themselves from accountability for many forms of wrongdoing, including
civil rights violations, labor abuses, and unfair consumer practices.
For example, 60 million workers are now subject to forced arbitration
clauses that deny them their day in court.
Forced arbitration is a rigged system. That is because the
arbitrators are essentially hired by the companies and consumers never
have a chance. Workers and consumers should not have to sign away their
rights as a condition to their employment or as a condition of a
contract, and they should not have to give up their day in court.
Often, arbitration is a desirable alternative to litigation. Under
the FAIR Act, arbitration would now be a voluntary option, not the only
option.
Madam Chair, I urge my colleagues to support this legislation.
{time} 0945
Mr. ARMSTRONG. Madam Chair, I reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I yield myself such time as I may
consume.
Madam Chair, I want to respond briefly to the notion that somehow
forced arbitration is good for consumers and workers and that they are
really going to miss being forced into these proceedings.
According to a 2017 study by the Economic Policy Institute, consumers
won only 9 percent of the claims brought in arbitration while companies
won 93 percent of the claims. So in terms of who wins, who has the
benefit of this rigged system, it is clear that it is the corporations.
The Economic Policy Institute's economist, Heidi Shierholz, notes
that ``not only do companies win in the overwhelming majority of claims
when consumers are forced into arbitration, they win big.''
The Consumer Financial Protection Bureau concluded in 2015 that there
is ``no evidence of arbitration clauses leading to lower prices for
consumers.''
So this notion that even though 83 percent of the American people are
against forced arbitration and even though the evidence shows
overwhelmingly that they lose in them, that somehow they really like
them, it is just not true.
I reserve the balance of my time.
Mr. ARMSTRONG. Madam Chair, I reserve the balance of my time.
[[Page H7845]]
Mr. CICILLINE. Madam Chair, may I inquire how much time remains.
The CHAIR. The gentleman from Rhode Island has 14\1/4\ minutes
remaining.
Mr. CICILLINE. Madam Chair, I yield myself such time as I may
consume.
I would like to build a little bit again on what the real impact of
forced arbitration is on consumers and workers.
According to data from the two biggest arbitration providers, the
American Arbitration Association and JAMS, only 1,909 consumers won a
monetary award in arbitration over a 5-year period. In all nursing home
arbitrations, only four won a monetary reward over that 5-year period.
Of the 11,114 employment claims that were filed, only 282 won a
monetary award. That is 2.5 percent.
Of the 6,012 arbitration cases involving credit cards and banks, only
131 won monetary damages. That is barely 2 percent.
These numbers make it clear that you are more likely to be struck by
lightning than win a monetary award in forced arbitration.
Furthermore, forced arbitration discourages consumers and workers
from adjudicating disputes altogether, while the lower probability of
victory and the meager legal fees associated with forced arbitration
discourage attorneys from representing individuals in arbitration
proceedings.
Even when workers go to arbitration, the system can wreak havoc on
their lives, and we heard many examples, particularly in the context of
sexual assault and harassment victims.
We heard during our hearing on forced arbitration from advocate and
former FOX News commentator Gretchen Carlson who spoke forcefully about
the horrifying effect that forced arbitration has on victims of sexual
assault and harassment.
Again, forced arbitration is corporate immunity. It is rigged because
corporations get to pick the arbitrators and the whole proceeding is
entirely secret.
That is why, overwhelmingly, the American people want forced
arbitration to end once and for all, and that is what the FAIR Act
does.
I reserve the balance of my time.
Mr. ARMSTRONG. Madam Chair, I think we can't talk about this bill and
talk about arbitration without also talking about class actions.
Mayer Brown did a study on class-action suits. Rather than simply
relying on anecdotes, the study undertook an empirical analysis of
neutrally selected sample sets of putative consumer and employee class-
action lawsuits filed in Federal court in 2009.
In the entire dataset, not one of the class actions ended in a final
judgment on the merits for the plaintiff. None of the class actions
went to trial, either before a judge or a jury.
The vast majority of cases produced no benefits to most members of
the putative class, even though in a number of those cases, the lawyers
who sought to represent the class often enriched themselves in the
process, and the lawyers representing the defense as well.
Approximately 14 percent of all class-action cases remain pending 4
years after they were filed, without resolution or even a determination
of whether the case could go forward on a class-wide basis. In these
cases, class members have not yet received any benefits and likely will
never receive any, based on the disposition of the other cases we have
studied.
Over one-third, 35 percent, of the class actions that have been
resolved were dismissed voluntarily by the plaintiff. Many of these
cases settled on an individual basis, meaning a payout to the
individual named plaintiff and the lawyers who brought the suit, even
though the class members receive nothing.
Just under one-third, 31 percent, of class actions that have been
resolved were dismissed by a court on the merits. Again, that means
that the class received nothing.
One-third, 33 percent, of resolved cases were settled on a class
basis.
The settlement rate is half the average for Federal court litigation,
meaning that a class member is far less likely to have even a chance of
obtaining relief than the average party suing individually.
For those cases that do settle, there is often little or no benefit
for class members.
I have been personally involved in this in a Barbri lawsuit for any
member of the bar across the country. I have no idea how much my fellow
lawyers made, but I know I got a check for $37 in the mail. Few class
members ever even see those paltry benefits, particularly in consumer
class actions.
Unfortunately, because information regarding the distribution of
class-action settlements is rarely available, the public almost never
learns what percentage of a settlement is actually paid to class
members. But of the six cases in the dataset for which the settlement
dispute was made public, five delivered funds to only minuscule
percentages of the class, 0.000006, 0.33 percent, 1.5 percent, 9.6
percent, and 12 percent.
Those results are consistent with other available information about
settlement distribution in consumer class actions.
Although some cases provide for automatic distribution of benefits to
class members, automatic distribution is almost never used in consumer
class actions. Only 1 of the 40 settled cases fell into that category.
The bottom line is, the hard evidence shows that class actions do not
provide class members with anything close to the benefits claimed by
their proponents, although they can and do enrich attorneys.
I reserve the balance of my time.
Mr. CICILLINE. Madam Chair, I yield the balance of my time to the
gentleman from New York (Mr. Nadler), the distinguished chair of the
full committee.
Mr. NADLER. Madam Chairwoman, I rise in strong support of H.R. 1423,
the Forced Arbitration Injustice Repeal Act, or the FAIR Act.
This critical legislation 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.
Nearly a century ago, Congress enacted the Federal Arbitration Act to
allow merchants to resolve run-of-the-mill contract disputes in a
system of private arbitration that would be legally enforceable. The
system that Congress envisioned was to be used voluntarily and only
between merchants of equal bargaining power.
However, the Supreme Court, over the past 40 years, has issued a
series of decisions that have expanded the use of arbitration far
beyond Congress' original intent or a fair reading of the text of the
Federal Arbitration Act, creating the unjust system that we see today.
Private arbitration has been transformed 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.
Many companies use forced arbitration as a tool to protect themselves
from consumers and workers who seek to hold them accountable for
wrongdoing. By burying a forced arbitration clause deep in the fine
print of a take-it-or-leave-it consumer or employment contract,
companies can evade the court system, where plaintiffs have far greater
legal protections, and hide behind the one-sided process that is tilted
in their favor.
For example, arbitration generally limits discovery, does not adhere
to the Rules of Civil Procedure, can prohibit class actions--which it
almost always does--and denies 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, thereby enabling companies to continue unsafe
practices after settling with one person.
For millions of consumers and employees, 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 agree to resolve any disputes in private arbitration.
We used to refer to these kinds of agreements as contracts of
adhesion, where one party with all the power dictates the terms to the
other party in a take-it-or-leave-it contract.
The next time you apply for a credit card, try crossing out the term
in the
[[Page H7846]]
fine print requiring you to agree to arbitration and see if you still
get that credit card. You will be denied without a moment's hesitation.
These are classic contracts of adhesion, which were once clearly
disfavored under the law, but which now seem to have been blessed by
the Supreme Court as standard operating procedures in the corporate
world.
Madam Chair, the Seventh Amendment to the Constitution guarantees
everyone the right to a jury trial for all controversies at law over
$20. These agreements for arbitration nullify the Seventh Amendment. We
have to respect the Constitution. The Constitution has more things in
it than the Second Amendment. It has a few other amendments, like the
Seventh Amendment, which we should respect.
These contracts of adhesion, these agreements, nullify any
protections that Congress votes. If we vote or a State legislature
votes on an employment protection, a union protection, a consumer
protection, its enforcement can be completely nullified by these
arbitration agreements.
For individuals who have no choice but to agree to these contracts,
that means that their ability to enforce civil rights, consumer, labor,
and antitrust 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, then, arbitration has become a virtual get-out-of-
jail-free card that many companies use to circumvent the basic rights
of consumers and workers.
H.R. 1423, the FAIR Act, reverse this disastrous trend by prohibiting
arbitration clauses in consumer, labor, antitrust, and civil rights
disputes.
Importantly, this legislation does not preclude parties from agreeing
to arbitrate a claim after the dispute arises, which will ensure that
arbitration agreements are truly voluntary and transparent. It does,
however, prevent unsuspecting consumers and employees from being forced
to give up their right to seek justice in court.
I urge my colleagues to support this vital legislation, and I reserve
the balance of my time.
Mr. ARMSTRONG. Madam Chair, I yield myself such time as I may
consume.
Madam Chair, like the First Amendment, Fourth Amendment, and when you
are from a small State, you are a big fan of the 10th Amendment as
well. I like the Second Amendment, but I like the other ones, too.
We are talking about credit cards, and we are talking about those
issues, and I think we are talking about consumer contracts. The
Consumer Financial Protection Bureau did a study in 2015, and it came
up with a couple of things. Particularly, you cannot talk about getting
rid of forced arbitration without talking about class actions again.
For example, the CFPB study found that the substantial majority of
class actions are resolved with no benefits to the class members. The
weighted-average claims were only 4 percent, i.e., the vast majority of
class members do not file claims for payment from class action
settlement funds. The average settlement payment to class members was
just $32.35, while the average attorney's fees averaged $1 million per
case. The average fee paid to class action plaintiffs' lawyers as a
percentage of the announced settlement was 41 percent, with a median of
46 percent.
Class-action lawsuits produce class-wide settlements and took an
average of nearly 2 years to resolve. Obviously, there are cases that
go longer; there are cases that go shorter. But when you are dealing in
a consumer protection area for a small amount of money, 2 years is an
exceptionally long time to be dealing with that kind of litigation.
Arbitration is simpler. It is quicker. It is often easier and more
convenient for the parties. In many cases, it creates less hostility
and gets finished quicker.
I reserve the balance of my time.
Mr. NADLER. Mr. Chair, I yield 2 minutes to the distinguished
gentlewoman from Illinois (Mrs. Bustos).
Mrs. BUSTOS. Mr. Chair, I thank Chairman Nadler for yielding, and I
also thank Congressman Johnson for this very important bill. I thank
him for his fight on behalf of so many people.
I rise today in strong support of the FAIR Act. This is a bill that
would end the secret arbitration process and the cycle of silencing
victims of predatory behavior.
I first became involved with this fight a couple of years back when
The Washington Post detailed allegations of a chief executive at Jared
and Kay Jewelers who only promoted women who would sleep with him. The
Post shed light on mandatory, alcohol-fueled managers meetings where
dozens of women were demeaned and groped.
{time} 1000
As I continued working on this issue, I met with women from the tech
industry who watched in horror as bigwig executives were given
multimillion-dollar exit packages after facing credible allegations of
misconduct. But none of these women were allowed to speak out.
Why? Because they were forced into a secret arbitration process,
losing their right to sue and ensuring their claims would never see the
light of day. And, if they were to speak out publicly, they--they as
the women who were victims of this--could be sued for breaking this
nondisclosure agreement.
This is a practice that is so egregious that the attorneys general in
all 50 of our States have come out against forced arbitration clauses
that are used in cases of sexual misconduct.
Mr. Chairman, I urge my colleagues on both sides of the aisle to
stand on the side of workers, on the side of fairness and transparency,
and on the side of doing what is right. I urge all of us to support
this piece of legislation.
Mr. ARMSTRONG. Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, may I inquire how much time is remaining,
please, on each side.
The Acting CHAIR (Mr. Peters). The gentleman from New York has 5\1/4\
minutes remaining. The gentleman from North Dakota has 12\3/4\ minutes
remaining.
Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from Virginia (Mr. Beyer).
Mr. BEYER. Mr. Chairman, I have been speaking about the need to ban
forced arbitration since I joined Congress. It is wonderful to finally
have this bill, the FAIR Act, up for a vote in Congress, and I really
want to thank Congressman Johnson.
I think what is so troubling about forced arbitration is that, when
we finally discover that we have become a victim of it, we feel
helpless and taken advantage of. These forced arbitration clauses are
buried in the fine print of everyday contracts, and before you know it,
we are unknowingly giving up our legal rights.
But I come before you, Mr. Chairman, as a small business owner to say
this is completely unnecessary. As a small business owner of 46 years,
we are selling 4,000 and 5,000 cars a year, and we have never had to
resort to mandatory binding arbitration. In fact, what we say is that,
if you have a conflict, we would love to go to arbitration with you,
and we will respect whatever the arbiter says; but, if you don't like
it, you can still sue us, giving the maximum choice to the consumer. As
a result, you rarely have a conflict that gets out of hand.
One only needs to think of the Wells Fargo case where Wells Fargo was
sued by several of its customers for using their personal information
to open all these fake accounts; but, when they filed suit against
Wells Fargo, they found out they had this mandatory forced arbitration
clause buried in the customer agreement.
Mr. Chairman, I encourage us to support this good bill.
Mr. ARMSTRONG. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished
gentlewoman from Colorado (Ms. DeGette).
Ms. DeGETTE. Mr. Chairman, I rise in strong support of H.R. 1423, the
FAIR Act.
Forced arbitration clauses were originally intended to mediate
business disputes among businesses, not between businesses and
individuals, but now they are found in every aspect of
[[Page H7847]]
our lives. From employment contracts to student loans, to cellphone
plans, to credit cards and numerous other goods and services, every
American has agreed to forced arbitration, whether they want to or not.
This bill ensures that individuals have the right to choose how they
seek justice: the choice to go to court, the choice to join a class
action lawsuit, and, yes, even the choice to go to arbitration.
But these choices should not be made for them by somebody else.
Passage of the FAIR Act will restore that choice, and I urge all of my
colleagues to support this important legislation.
Mr. ARMSTRONG. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished
gentleman from New York (Mr. Jeffries).
Mr. JEFFRIES. Mr. Chairman, I thank the chairman and distinguished
gentleman from Georgia for his tremendous leadership.
Women have a right not to be sexually harassed; people of color have
a right not to be discriminated against; workers have a right not to be
exploited; consumers have a right not to be defrauded; and the American
people have a right to liberty and justice for all. Unfortunately, the
malignant practice of forced arbitration takes these rights away.
The American people are being hoodwinked, bamboozled, and led astray.
The practice of forced arbitration effectively makes rights available
without a remedy. This practice is unconscionable, unacceptable, and
un-American.
Vote ``yes'' on the FAIR Act so we can end this practice of forced
arbitration once and for all.
Mr. ARMSTRONG. Mr. Chairman, I yield myself the remainder of my time.
In closing, I just want to ask one simple question: Under this bill,
who wins and who loses?
Do consumers win? No. Studies show arbitration provides consumers
faster and cheaper results that are just as good as court outcomes
deliver; and we know that they will have way more access to a result in
small cases that are bigger than small claims and too small--those in
which hiring a private lawyer at an hourly rate makes sense but are too
small so class action doesn't apply.
Do employees win? No. Research shows employees are three times more
likely to win in arbitration than in court, and prevailing employees
typically win twice as much money in arbitration in a shorter period of
time.
Do class action plaintiffs win? Not if you listen to the Consumer
Financial Protection Bureau. The CFPB'S 2015 study of arbitration and
class actions found the substantial majority of class actions were
resolved with no benefits flowing to the absent class members. The
weighted average rate in class actions was only 4 percent, meaning the
vast majority of class members do not file claims for payment under
class action settlement funds. The average settlement payment, again,
was only $32.35.
Does anybody win under this bill? Surprise, surprise, somebody does.
It is the plaintiffs' in class action trial bar. Once again, all you
have to do is look at the CFPB's study. It found that class action
attorneys' fees average $1 million per case, and the average fee paid
to a class action plaintiffs' lawyer as a percentage of the announced
settlement was 41 percent, with a median of 46 percent.
So the answer to the question about this bill is simple: Consumers
don't win. Employees don't win. Even class action plaintiffs don't win.
But the plaintiffs' class action trial lawyers sure do win, and they
make out like bandits.
Mr. Chairman, I urge my colleagues to vote ``no'' on this unjust
bill, and I yield back the balance of my time.
Mr. NADLER. Mr. Chair, I yield myself the balance of my time.
Mr. Chair, we have a bedrock principle in this country, and that is
that all Americans deserve their day in court. We make a mockery of
this principle, however, when individuals can be stripped of this
fundamental right and be forced into private arbitration proceedings
without the safeguards our judicial system affords.
We make a mockery of this right not only when individuals can be
stripped of this right, but when almost all Americans are stripped of
this fundamental right and are forced into private arbitration
proceedings without the safeguards our judicial system affords.
Now, we heard the statistics cited by the gentleman, which come from
the Chamber of Commerce, and Mr. Cicilline showed how wrong those
statistics were.
But the real point is, of course, that, under this bill, if a
plaintiff thinks that he can get a better deal under arbitration, then
arbitration is available voluntarily, as it should be.
What this bill seeks to ban is individuals--almost all Americans--
involuntarily giving up their sacred constitutional right to a trial by
jury, to their day in court, whether they like it or not. This bill
will guarantee that people have their rights. They can opt for
arbitration if they want to, but they don't have to.
This bill supports liberty; it supports constitutional rights; and it
supports the little guy against the giant corporation. H.R. 1423, the
FAIR Act, rights these wrongs by reopening the courthouse door to all
Americans.
I applaud the gentleman from Georgia (Mr. Johnson) for his leadership
on this legislation which has 222 cosponsors.
This measure is also supported by a broad coalition of more than 70
public-interest, labor, and advocacy organizations, including Public
Citizen, Consumer Reports, the Communications Workers of America, the
Leadership Conference on Civil Rights, and the American Association of
Justice, not just by trial lawyers.
In addition, 84 percent of Americans across the political spectrum
support ending forced arbitration in employment and consumer disputes,
according to recent polling data.
Mr. Chairman, it is up to Congress to end this secretive and unfair
practice. I urge my colleagues to support the FAIR Act and to restore
access to justice for millions of Americans, and I yield back the
balance of my time.
Ms. JACKSON LEE. Mr. Chair, as a senior member of the Judiciary
Committee, I rise in strong support of H.R. 1423, the Forced
Arbitration Injustice Repeal Act or the FAIR Act.
I support the FAIR Act because it restores the rights of workers and
consumers by making forced arbitration between individuals and
corporations illegal.
This would allow individuals the choice as to how to pursue their
rights against a corporation.
It also means that corporations will know that when they violate the
law, they can be held publicly accountable.
I have been a champion of FAIR since 2006 when we were discussing the
LaVar Arrington and arbitration process of the National Football League
Players Association.
Mr. Arrington was an All-Pro linebacker for the Washington Redskins
and the New York Giants in the NFL.
In 2004, the NFLPA agreed to represent LaVar Arrington in the matter
and retained a major New York law firm.
I am advised that the law firm did not meet with LaVar Arrington
until shortly before his non-injury grievance arbitration was scheduled
to be heard.
LaVar Arrington was not impressed with the performance of his legal
representatives, and after the hearing called NFLPA President Gene
Upshaw to complain.
LaVar Arrington asked Mr. Upshaw, who had hired a major New York
firm, how they could be his lawyers if they had not even bothered to
meet with him, the client, until shortly before the arbitration.
LaVar Arrington told Gene Upshaw he was going to hire his own
attorney who could give him an objective view and did so shortly
thereafter.
After LaVar Arrington retained new counsel, the arbitration was
adjourned for the purpose of pursuing settlement negotiations.
Through the efforts of new counsel, a settlement was reached and Mr.
Carl Poston played an important role in achieving this settlement,
including arranging a meeting with Redskins Coach Joe Gibbs to explain
LaVar Arrington's feelings concerning the situation.
Coach Gibbs helped prevail on the Redskins to reach an acceptable
settlement with LaVar Arrington.
The settlement provided that no one did anything wrong or improper
and provided for a new contract for LaVar Arrington under which he
could obtain an additional $4.85 million under certain conditions,
including the right to void the contract if he made Pro Bowls in the
next four years unless the Redskins paid LaVar Arrington an additional
$3.25 million.
The settlement agreement provided:
[[Page H7848]]
``This Agreement shall not be construed as an admission of liability
or a finding of wrongdoing by any party.''
As LaVar Arrington has put it, ``[m]y grievance against the Redskins
has been settled on no-fault, win-win resolution.''
In 2006, when faced with the issues of the NFLPA's arbitration
procedures, I had the questions of:
(a) whether the arbitration procedures employed by the NFLPA are
fair;
(b) whether they ensure a neutral arbitrator;
(c) whether adequate opportunity for judicial review exists; and
(d) whether the procedures comport with the intent underlying the
Federal Arbitration Act and, if not, what might be a proper legislative
response.
We cannot continue to allow corporations to bury forced arbitration
clauses in employee handbooks and smart phone apps.
Notably, the bill also applies to small businesses seeking to protect
their rights under federal antitrust laws.
We know it is a one-sided system and that corporations write the
clauses to be so rigged so most people give up pursing their rights
altogether.
Corporations choose the forced arbitration provider, the rules under
which the forced arbitration will take place, the state in which the
forced arbitration proceeding will occur, and the payment terms.
Most people do not know about forced arbitration but even those who
are aware have no say in the process and, because these clauses apply
to most jobs, products, and services, a person has no choice but to
live with the total depravation of their rights via forced arbitration
or give up the job/product/service altogether.
I would like to acknowledge a victim of forced arbitration.
I have been told we are joined by Alexander Newton, the brother of
Andowah Newton from New York.
Andowah Newton is Vice President, Legal Affairs at LVMH Moet Hennessy
Louis Vuitton Inc., a multinational luxury goods conglomerate.
For years, Ms. Newton was sexually harassed at work by a colleague.
When she formally reported the harassment, the company demanded she
apologize to the harasser for reporting him and the company promoted
the harasser.
It also began retaliating against her at work.
Ms. Newton had been forced to sign a mandatory arbitration agreement
as part of accepting her offer of employment.
Pursuant to New York's 2018 law prohibiting employment agreements
that mandate arbitration of sexual harassment claims, in 2019, Ms.
Newton filed her sexual harassment claims in New York state court.
The company has moved to compel arbitration, arguing that the New
York law is preempted by federal law and that Ms. Newton should be
forced into mandatory confidential arbitration proceedings.
Ms. Newton continues to fight the motion to compel in court.
For Ms. Newton and for all of the victims of forced arbitration, we
need to resolve this injustice.
Buried in the fine print of everything from nursing home admissions
forms and credit card ``agreements,'' to online click-through ``terms
and conditions'' and employee handbooks, forced arbitration enables
corporations to evade responsibility and avoid accountability.
Forced arbitration means that when a corporation violates the rights
of their workers or consumers, they cannot enforce their rights.
Forced arbitration lets corporations funnel aggrieved workers and
consumers into a private and secret system which is designed by the
corporation to be so rigged that most people are forced to give up
their rights altogether.
We know that because corporations know that most individuals will
simply give up when faced with a forced arbitration, there is virtually
no incentive for corporations to follow the law, or to quickly and
fairly handle consumer or worker claims.
The FAIR Act would restore the rights of workers and consumers by
making forced arbitration between individuals and corporations
illegal--meaning that individuals will be returned the choice as to how
to pursue their rights against a corporation.
The FAIR Act also means that corporations will know that when they
violate the law, they can be held publicly accountable, thereby
returning to corporations the powerful incentive to follow the law in
the first place and to treat people justly and fairly.
Forced arbitration is a private, secretive system without any
enforceable standards or legal protections.
There is no public review of decisions to ensure the arbitrator got
it right.
Federal law does not even require that arbitrators have any legal
training or even follow the law and the entire system is unaccountable
to the public.
American heroes fought hard for fundamentally important laws--such as
federal antidiscrimination laws and laws to protect servicemembers and
their families--but these laws are now unenforceable.
It is time to close the forced arbitration loophole that gives
corporations the power to ignore the laws Congress enacted.
The Supreme Court held that corporations are allowed to force
individuals into arbitration because the Federal Arbitration Act, which
was passed in 1925--wipes out all rights under all other laws unless
and until Congress updates that law.
Thus, the FAIR Act simply amends the Federal Arbitration Act to make
clear that workers and consumers cannot be forced into arbitration
against their will.
This prohibition on forced arbitration would apply to all workers (no
matter how they are classified by their employer), consumers, and small
businesses seeking to enforce their rights under antitrust laws.
I urge my colleagues to join me in supporting H.R. 1423, the ``Forced
Arbitration Injustice Act.''
The Acting CHAIR. All time for general debate has expired.
In lieu of the amendment in the nature of a substitute recommended by
the Committee on the Judiciary, printed in the bill, it shall be in
order to consider as an original bill for purpose of amendment under
the 5-minute rule an amendment in the nature of a substitute consisting
of the text of Rules Committee Print 116-32, modified by the amendment
printed in part A of House Report 116-210. That amendment in the nature
of a substitute shall be considered as read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 1423
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'' or the ``FAIR Act''.
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 4--ARBITRATION OF EMPLOYMENT, CONSUMER, ANTITRUST, AND CIVIL
RIGHTS DISPUTES
``Sec.
``401. Definitions.
``402. No validity or enforceability.''.
``Sec. 401. 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
``(B) in which at least 1 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
[[Page H7849]]
``(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. 402. 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 inserting ``or as otherwise provided in
chapter 4'' before the period at the end,
(C) in section 208--
(i) in the section heading by striking ``chapter 1;
residual application'' and inserting ``application'', and
(ii) by adding at the end the following: ``This chapter
applies to the extent that this chapter is not in conflict
with chapter 4.'', and
(D) in section 307--
(i) in the section heading by striking ``chapter 1;
residual application'' and inserting ``application'', and
(ii) by adding at the end the following: ``This chapter
applies to the extent that this chapter is not in conflict
with chapter 4.''.
(2) Table of sections.--
(A) Chapter 2.--The table of sections of chapter 2 of title
9, United States Code, is amended by striking the item
relating to section 208 and inserting the following:
``208. Application.''.
(B) Chapter 3.--The table of sections of chapter 3 of title
9, United States Code, is amended by striking the item
relating to section 307 and inserting the following:
``307. Application.''.
(3) Table of chapters.--The table of chapters of title 9,
United States Code, is amended by adding at the end the
following:
``4. Arbitration of Employment, Consumer, Antitrust, and Civil Rights
Disputes.................................................401''.....
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.
The Acting CHAIR. No amendment to that amendment in the nature of a
substitute shall be in order, except those printed in part B of House
Report 116-210. Each such amendment may be offered only in the order
printed in the report, by a Member designated in the report, shall be
considered read, shall be debatable for the time specified in the
report, equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be subject
to a demand for division of the question.
Amendment No. 1 Offered by Mr. Jordan
The Acting CHAIR. It is now in order to consider amendment No. 1
printed in part B of House Report 116-210.
Mr. JORDAN. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 6, strike lines 16 through 25.
The Acting CHAIR. Pursuant to House Resolution 558, the gentleman
from Ohio (Mr. Jordan) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Ohio.
Mr. JORDAN. Mr. Chairman, the amendment addresses a glaring flaw in
the legislation.
The bill strips nonunion employees of any and all benefits they might
gain by contracts they have signed to arbitrate their disputes. It says
that contracts which force arbitration for employment disputes--
thereby, contracts which open a faster, cheaper path of justice for
employees--are no longer permitted even though research has shown that
employees obtain more favorable judgments in arbitration than in court.
In court, of course, the average employee stands to be seriously
outgunned by an employer who has far more resources to hire costly
courtroom counsel.
While the bill takes those benefits out of the hands of nonunion
employees, it doesn't do that for union employees. Predispute,
mandatory binding arbitration contracts negotiated by unions with
employers or with other unions are left untouched by the bill.
This bill is titled the Forced Arbitration Injustice Repeal Act, but
it should be titled the forced injustice guarantee act because the bill
enacts injustice between union and nonunion employees.
Nonunion employees get handed over to the high-cost plaintiffs' trial
lawyers and may never be able to afford their day in court. Union
employees get all the benefits of forcing arbitration with their
employers and don't have to make a sacrifice at all like the nonunion
employees do.
Mr. Chairman, the amendment fixes the hypocritical treatment in the
legislation. I urge my colleagues to support the amendment, and I
reserve the balance of my time.
Mr. NADLER. Mr. Chair, I claim the time in opposition to the
amendment.
The Acting CHAIR. The gentleman from New York is recognized for 5
minutes.
Mr. NADLER. Mr. Chair, I rise in strong opposition to this amendment.
There are more than 60 million workers who make up a majority of
nonunion, private sector employees and who are subject to forced
arbitration clauses. These employees are told that, if they want to get
a job or keep the job they have, they must sign away their right to
their day in court and submit to forced arbitration. These workers have
absolutely no choice.
Many of these workers have no idea that they are subject to forced
arbitration, and even if they are aware, there is nothing they can do
about it; and, of course, it is not possible for them to know that they
may be victims of sexual assault, wage discrimination, or other illegal
behavior before they begin employment.
This is a serious power imbalance which allows companies to
unilaterally impose unfair terms upon nonunion employees. The FAIR Act
aims to put power back into the hands of these 60 million workers who
have been forced by their employer to sign away their rights.
But when real choice is part of the equation, arbitration can be a
reasonable alternative to litigation. Collective bargaining, which
involves meaningful negotiation between the company and the union,
results in a much different arbitration process and can produce much
different results.
In a 2019 report, the Economic Policy Institute noted that ``beyond
the use of the world `arbitration,' the system that organized labor and
management have long been using to resolve disputes has almost nothing
in common
[[Page H7850]]
with the top-down, take-it-or-leave-it brand of arbitration.''
{time} 1015
The collective bargaining process provides protections that are
simply unavailable to many nonunion workers, such as the ability to
reject unfair employment terms. In collective bargaining, the company
cannot just impose its will upon the union. There must be buy-in on
both sides.
When arbitration is agreed to through collective bargaining, there is
less likely to be an experience gap between the parties. In nonunion
arbitration, the company continuously interacts with arbitrators, while
the employee may only see the arbitrator once, if that. And in most
cases, the company gives itself unilateral power to pick the
arbitrator. This creates a conflict of interest in which the arbitrator
has a strong incentive to prioritize the company's interest by finding
in its favor than to fairly assess the claim at issue.
The collective bargaining process looks much different. Like the
company, the union also has the benefit of being a repeat player in
arbitration. The union understands how the process works, and it may
even have experience practicing in front of the same arbitrator
multiple times.
When the repeat player dynamic exists on both sides of the
arbitration, the risk that one party will be systematically favored
over the other is greatly reduced.
Furthermore, through collective bargaining, a union can secure a
variety of important protections for workers, such as requiring truly
neutral arbitrators, paid time off for employees to participate in the
arbitration, and transparent decisionmaking.
Often, union employees are guaranteed a multilevel appeals process,
lowering the risk that an arbitrator will ignore relevant laws or that
there will be an unjust result.
The concerns that the FAIR Act is designed to address simply do not
occur in the context of collective bargaining and, therefore, makes no
sense to apply its restrictions to such contracts.
Accordingly, I strongly oppose this amendment, and I encourage my
colleagues to vote against this amendment.
Mr. Chair, I reserve the balance of my time.
Mr. JORDAN. Mr. Chair, I have seen elected officials change their
positions. I have never seen it happen in 5 minutes.
Mr. Chair, 5 minutes ago, the chairman of the Committee on the
Judiciary stood up at the end, closing out the debate on the overall
legislation before we got to the amendment debate, and he said this,
``a bedrock principle in this country is you get your day in court.''
The next word he used was important. He said, ``all'' Americans deserve
their day in court. Now, he just told us that is not the case.
I guess by ``all,'' he meant only if you are nonunion do you get your
day in court. Union people don't. They have to abide by these
arbitration contracts.
This is really simple. This is about fairness. If it is good for the
goose, it is good for the gander. That is all we are saying here.
If the chairman of the Committee on the Judiciary believes what he
just said 5 minutes ago, then he should be in support of this
amendment.
Or maybe he didn't mean ``all'' when he said ``all'' Americans
deserve their day in court.
Maybe he didn't mean ``bedrock principle'' when he said bedrock
principle.
Maybe he only meant, Oh, it is a principle just for some people,
which means, by definition, it is not a principle at all.
So I want to know which position the chairman has; the one he said 5
minutes ago, or the one he said 2 minutes ago.
Mr. Chair, I yield back the balance of my time.
Mr. NADLER. Mr. Chair, I yield myself the balance of my time.
If anything, this discussion about collective bargaining shows that
arbitration can be a fair and reasonable process when there is actual
choice on both sides of the tracks. But for the majority, the
overwhelming majority of nonunion private sector workers, that choice
simply does not exist.
This amendment fails to comprehend these critical distinctions
between collective bargaining and the take-it-or-leave-it arbitration
clauses that the majority of workers face. And it fails to recognize
that restoring equity and choice is exactly what the FAIR Act claims to
do. You cannot compare apples and oranges, as the gentleman from Ohio
(Mr. Jordan) tried to do.
Finally, as the AFL-CIO explains, this amendment, ``would also be
directly contrary to the intent of Congress in both the Wagner and
Taft-Hartley Acts, which encourage the practice of collective
bargaining and the resolution of contract disputes through
arbitration.''
And, again, arbitration voluntarily agreed to by the workers through
their democratically elected union is not the same as coercive forced
arbitration.
Mr. Chair, accordingly, I urge my colleagues to oppose the amendment,
and I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Ohio (Mr. Jordan).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. JORDAN. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Ohio will be
postponed.
Amendment No. 2 Offered by Mrs. Fletcher
The Acting CHAIR. It is now in order to consider amendment No. 2
printed in part B of House Report 116-210.
Mrs. FLETCHER. Mr. Chairman, I have an amendment at the desk, and I
ask for its consideration.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end, add the following:
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 Acting CHAIR. Pursuant to House Resolution 558, the gentlewoman
from Texas (Mrs. Fletcher) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentlewoman from Texas.
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.
[[Page H7851]]
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.
Mr. Chair, it is for these reasons that I urge my colleagues to
support this amendment, and I reserve the balance of my time.
Mr. ARMSTRONG. Mr. Chairman, I rise in opposition to the amendment.
The Acting CHAIR. The gentleman from North Dakota is recognized for 5
minutes.
Mr. ARMSTRONG. Mr. Chair, I appreciate the sentiment, but the
amendment is unnecessary. The bill's terms clearly already do nothing
to prevent post-dispute arbitration agreements from being negotiated or
enforced, in theory.
Honestly, the amendment really does nothing. It is a fig leaf
designed to hide the mischief that is actually being done by the bill.
It pretends to preserve the possibility of negotiating agreements to
arbitrate once disputes arise, but if this bill succeeds in wiping out
pre-dispute arbitration agreements, parties will almost never ever
arbitrate. And the simple reason is, if one person really wants to be
in arbitration, the other person will be really disadvantaged by
arbitration.
In order to have a post-dispute arbitration, you need both parties to
agree. And the simple fact is, that once a dispute arises, there is
always going to be a benefit for one of the parties to go to court. And
most of the time, it is not going to be the consumer or the employee
that sees these advantages. It will be a company or an employee with
the resources to overwhelm a consumer or an employee in court with
discovery, procedure, and expensive lawyer fees.
And far too often, just the prospect of that will be enough to
dissuade a consumer or employee from even filing a lawsuit to begin
with, which means that the parties with the deepest pockets will just
be able to get off scot-free.
The reality is, in most disputes, no matter what venue you are in--
you can be in Federal court, you can be in State court, you can be in
arbitration--there is going to be unequal bargaining power. Pre-dispute
arbitration gives people with less financial means in your basic
employment dispute, contractual dispute, or consumer dispute, a venue
that is affordable, gets done in a reasonable amount of time, and
allows them to move through.
Now, if you are a company and you are not forced into that in pre-
dispute, why in the world would you ever agree to go back there?
Mr. Chair, I urge opposition to this amendment, and I yield back the
balance of my time.
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.
The Acting CHAIR. The question is on the amendment offered by the
gentlewoman from Texas (Mrs. Fletcher).
The amendment was agreed to.
Amendment No. 1 Offered by Mr. Jordan
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, the unfinished
business is the demand for a recorded vote on amendment No. 1 printed
in part B of House Report 116-210 offered by the gentleman from Ohio
(Mr. Jordan) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIR. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 161,
noes 253, not voting 26, as follows:
[Roll No. 539]
AYES--161
Aderholt
Allen
Amash
Amodei
Armstrong
Arrington
Baird
Balderson
Banks
Barr
Biggs
Bilirakis
Bishop (NC)
Bishop (UT)
Brady
Brooks (AL)
Brooks (IN)
Buchanan
Bucshon
Budd
Burchett
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Cline
Cloud
Cole
Collins (GA)
Collins (NY)
Comer
Conaway
Crenshaw
Curtis
Davidson (OH)
DesJarlais
Duncan
Dunn
Estes
Ferguson
Fleischmann
Flores
Fortenberry
Foxx (NC)
Fulcher
Gaetz
Gallagher
Gianforte
Gibbs
Gohmert
Gooden
Gosar
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Green (TN)
Grothman
Guthrie
Harris
Hartzler
Hern, Kevin
Herrera Beutler
Hice (GA)
Hill (AR)
Holding
Hollingsworth
Hudson
Huizenga
Hunter
Hurd (TX)
Johnson (LA)
Johnson (OH)
Johnson (SD)
Jordan
Joyce (PA)
Kelly (MS)
Kelly (PA)
King (IA)
Kustoff (TN)
LaHood
LaMalfa
Lamborn
Latta
Lesko
Long
Loudermilk
Lucas
Luetkemeyer
Marshall
Massie
McCarthy
McCaul
McClintock
McHenry
Meadows
Meuser
Mitchell
Moolenaar
Mooney (WV)
Mullin
Murphy (NC)
Newhouse
Norman
Nunes
Olson
Palazzo
Palmer
Pence
Perry
Posey
Ratcliffe
Rice (SC)
Riggleman
Roby
Rodgers (WA)
Roe, David P.
Rogers (AL)
Rogers (KY)
Rooney (FL)
Rose, John W.
Rouzer
Roy
Rutherford
Scalise
Schweikert
Scott, Austin
Sensenbrenner
Simpson
Smith (MO)
Smith (NE)
Smucker
Spano
Steube
Stewart
Stivers
Taylor
Thompson (PA)
Thornberry
Timmons
Tipton
Upton
Wagner
Walberg
Walden
Walker
Walorski
Waltz
Watkins
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Wright
Yoho
NOES--253
Adams
Aguilar
Allred
Axne
Bacon
Barragan
Bass
Bera
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Bost
Boyle, Brendan F.
Brindisi
Brown (MD)
Brownley (CA)
Bustos
Butterfield
Carbajal
Cardenas
Carson (IN)
Cartwright
Case
Casten (IL)
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Cisneros
Clark (MA)
Clarke (NY)
Clay
Cleaver
Cohen
Connolly
Cook
Cooper
Correa
Costa
Courtney
Cox (CA)
Craig
Crist
Crow
Cuellar
Davids (KS)
Davis (CA)
Davis, Rodney
Dean
DeFazio
DeGette
DeLauro
DelBene
Delgado
Demings
DeSaulnier
Deutch
Diaz-Balart
Dingell
Doggett
Doyle, Michael F.
Emmer
Engel
Escobar
Eshoo
Espaillat
Evans
Finkenauer
Fitzpatrick
Fletcher
Foster
Frankel
Fudge
Gabbard
Gallego
Garamendi
Garcia (IL)
Garcia (TX)
Golden
Gomez
Gonzalez (OH)
Gonzalez (TX)
Gottheimer
Green, Al (TX)
Griffith
Grijalva
Guest
Haaland
Harder (CA)
Hastings
Hayes
Heck
Higgins (LA)
Higgins (NY)
Hill (CA)
Himes
Horn, Kendra S.
Horsford
Houlahan
Hoyer
Jayapal
Jeffries
Johnson (GA)
Johnson (TX)
Joyce (OH)
Kaptur
Katko
Keating
Kelly (IL)
Kennedy
Khanna
Kildee
Kilmer
Kim
Kind
Kinzinger
Kirkpatrick
Krishnamoorthi
Kuster (NH)
Lamb
Langevin
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee (CA)
Lee (NV)
Levin (CA)
Levin (MI)
Lewis
Lieu, Ted
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan
Luria
Lynch
Malinowski
Maloney, Carolyn B.
Maloney, Sean
Mast
Matsui
McAdams
McBath
McCollum
McGovern
[[Page H7852]]
McKinley
McNerney
Meeks
Meng
Miller
Moore
Morelle
Moulton
Mucarsel-Powell
Murphy (FL)
Nadler
Napolitano
Neal
Neguse
Norcross
Norton
O'Halleran
Ocasio-Cortez
Omar
Pallone
Panetta
Pappas
Pascrell
Payne
Perlmutter
Peters
Peterson
Phillips
Pingree
Plaskett
Pocan
Porter
Pressley
Price (NC)
Quigley
Raskin
Reschenthaler
Rice (NY)
Richmond
Rose (NY)
Rouda
Roybal-Allard
Ruiz
Ruppersberger
Rush
Ryan
Sablan
Sanchez
Sarbanes
Scanlon
Schakowsky
Schiff
Schneider
Schrader
Schrier
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shalala
Sherman
Sherrill
Sires
Slotkin
Smith (NJ)
Smith (WA)
Soto
Spanberger
Speier
Stanton
Stauber
Stefanik
Steil
Stevens
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Titus
Tlaib
Tonko
Torres (CA)
Torres Small (NM)
Trahan
Trone
Turner
Underwood
Van Drew
Vargas
Veasey
Vela
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson Coleman
Welch
Wexton
Wild
Wilson (FL)
Yarmuth
Young
Zeldin
NOT VOTING--26
Abraham
Babin
Beatty
Bergman
Buck
Cheney
Clyburn
Crawford
Cummings
Cunningham
Davis, Danny K.
Duffy
Gonzalez-Colon (PR)
Hagedorn
Huffman
Jackson Lee
Keller
King (NY)
Marchant
McEachin
Radewagen
Reed
San Nicolas
Shimkus
Thompson (MS)
Weber (TX)
{time} 1056
Messrs. JOHNSON of Georgia, O'HALLERAN, Mrs. HAYES, Messrs. LYNCH and
ROSE of New York changed their vote from ``aye'' to ``no.''
Messrs. HOLDING, MULLIN, and PALAZZO changed their vote from ``no''
to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
Stated for:
Mr. HIGGINS of Louisiana. Mr. Chair, on rollcall No. 539, I
mistakenly voted ``no'' when I intended to vote ``yes.''
The Acting CHAIR (Mr. Butterfield). The question is on the amendment
in the nature of a substitute, as amended.
The amendment was agreed to.
The Acting CHAIR. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Peters) having assumed the chair, Mr. Butterfield, Acting Chair of the
Committee of the Whole House on the state of the Union, reported that
that Committee, having had under consideration the bill (H.R. 1423) to
amend title 9 of the United States Code with respect to arbitration,
and, pursuant to House Resolution 558, he reported the bill back to the
House with an amendment adopted in the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on the amendment to the amendment
reported from the Committee of the Whole?
If not, the question is on the amendment in the nature of a
substitute, as amended.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. ARMSTRONG. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, this 5-
minute vote on passage of the bill will be followed by a 5-minute vote
on agreeing to the Speaker's approval of the Journal, if ordered.
The vote was taken by electronic device, and there were--ayes 225,
noes 186, not voting 23, as follows:
[Roll No. 540]
AYES--225
Adams
Aguilar
Allred
Axne
Barragan
Bass
Bera
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Boyle, Brendan F.
Brindisi
Brown (MD)
Brownley (CA)
Bustos
Butterfield
Carbajal
Cardenas
Carson (IN)
Cartwright
Case
Casten (IL)
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Cisneros
Clark (MA)
Clarke (NY)
Clay
Cleaver
Cohen
Connolly
Cooper
Correa
Costa
Courtney
Cox (CA)
Craig
Crist
Crow
Davids (KS)
Davis (CA)
Dean
DeFazio
DeGette
DeLauro
DelBene
Delgado
Demings
DeSaulnier
Deutch
Dingell
Doggett
Doyle, Michael F.
Engel
Escobar
Eshoo
Espaillat
Evans
Finkenauer
Fletcher
Foster
Frankel
Fudge
Gabbard
Gaetz
Gallego
Garamendi
Garcia (IL)
Garcia (TX)
Golden
Gomez
Gonzalez (TX)
Gottheimer
Green, Al (TX)
Grijalva
Haaland
Harder (CA)
Hastings
Hayes
Heck
Higgins (NY)
Hill (CA)
Himes
Horn, Kendra S.
Horsford
Houlahan
Hoyer
Jayapal
Jeffries
Johnson (GA)
Johnson (TX)
Kaptur
Keating
Kelly (IL)
Kennedy
Khanna
Kildee
Kilmer
Kim
Kind
Kirkpatrick
Krishnamoorthi
Kuster (NH)
Lamb
Langevin
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee (CA)
Lee (NV)
Levin (CA)
Levin (MI)
Lewis
Lieu, Ted
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan
Luria
Lynch
Malinowski
Maloney, Carolyn B.
Maloney, Sean
Matsui
McAdams
McBath
McCollum
McGovern
McNerney
Meeks
Meng
Moore
Morelle
Moulton
Mucarsel-Powell
Murphy (FL)
Nadler
Napolitano
Neal
Neguse
Norcross
O'Halleran
Ocasio-Cortez
Omar
Pallone
Panetta
Pappas
Pascrell
Payne
Perlmutter
Peters
Phillips
Pingree
Pocan
Porter
Pressley
Price (NC)
Quigley
Raskin
Rice (NY)
Richmond
Rose (NY)
Rouda
Roybal-Allard
Ruiz
Ruppersberger
Rush
Ryan
Sanchez
Sarbanes
Scanlon
Schakowsky
Schiff
Schneider
Schrader
Schrier
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shalala
Sherman
Sherrill
Sires
Slotkin
Smith (NJ)
Smith (WA)
Soto
Spanberger
Speier
Stanton
Stevens
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Titus
Tlaib
Tonko
Torres (CA)
Torres Small (NM)
Trahan
Trone
Underwood
Van Drew
Vargas
Veasey
Vela
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson Coleman
Welch
Wexton
Wild
Wilson (FL)
Yarmuth
NOES--186
Aderholt
Allen
Amash
Amodei
Armstrong
Arrington
Bacon
Baird
Balderson
Banks
Barr
Biggs
Bilirakis
Bishop (NC)
Bishop (UT)
Bost
Brady
Brooks (AL)
Brooks (IN)
Buchanan
Bucshon
Budd
Burchett
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Cline
Cloud
Cole
Collins (GA)
Collins (NY)
Comer
Conaway
Cook
Crenshaw
Cuellar
Curtis
Davidson (OH)
Davis, Rodney
DesJarlais
Diaz-Balart
Duncan
Dunn
Emmer
Estes
Ferguson
Fitzpatrick
Fleischmann
Flores
Fortenberry
Foxx (NC)
Fulcher
Gallagher
Gianforte
Gibbs
Gohmert
Gonzalez (OH)
Gooden
Gosar
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Green (TN)
Griffith
Grothman
Guest
Guthrie
Harris
Hartzler
Hern, Kevin
Herrera Beutler
Hice (GA)
Higgins (LA)
Hill (AR)
Holding
Hollingsworth
Hudson
Huizenga
Hunter
Hurd (TX)
Johnson (LA)
Johnson (OH)
Johnson (SD)
Jordan
Joyce (OH)
Joyce (PA)
Katko
Kelly (MS)
Kelly (PA)
King (IA)
Kinzinger
Kustoff (TN)
LaHood
LaMalfa
Lamborn
Latta
Lesko
Long
Loudermilk
Lucas
Luetkemeyer
Marshall
Massie
Mast
McCarthy
McCaul
McClintock
McHenry
McKinley
Meadows
Meuser
Miller
Mitchell
Moolenaar
Mooney (WV)
Mullin
Murphy (NC)
Newhouse
Norman
Nunes
Olson
Palazzo
Palmer
Pence
Perry
Peterson
Posey
Ratcliffe
Reschenthaler
Rice (SC)
Riggleman
Roby
Rodgers (WA)
Roe, David P.
Rogers (AL)
Rogers (KY)
Rooney (FL)
Rose, John W.
Rouzer
Roy
Rutherford
Scalise
Schweikert
Scott, Austin
Sensenbrenner
Simpson
Smith (MO)
Smith (NE)
Smucker
Spano
Stauber
Stefanik
Steil
Steube
Stewart
Stivers
Taylor
Thompson (PA)
Thornberry
Timmons
Tipton
Turner
Upton
Wagner
Walberg
Walden
Walker
Walorski
Waltz
Watkins
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Wright
Yoho
Young
Zeldin
NOT VOTING--23
Abraham
Babin
Beatty
Bergman
Buck
Cheney
Clyburn
Crawford
Cummings
Cunningham
Davis, Danny K.
Duffy
Hagedorn
Huffman
Jackson Lee
Keller
King (NY)
Marchant
McEachin
Reed
Shimkus
Thompson (MS)
Weber (TX)
{time} 1106
So the bill was passed.
[[Page H7853]]
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
PERSONAL EXPLANATION
Mr. BERGMAN. Mr. Speaker, on rollcall Votes 539 and 540, I am not
recorded because I was not present in the House. Had I been present, I
would have voted: ``nay'' on rollcall No. 539 and ``nay'' on rollcall
No. 540.
Personal Explanation
Mr. CUNNINGHAM. Mr. Speaker, on September 19 and 20, 2019, I was
absent from the House chamber. I returned to my district in South
Carolina to attend to a family matter. Accordingly, I was unable to
vote on three legislative measures on the floor. Had I been present and
voting, I would have voted as follows: ``aye'' on rollcall No. 536: H.
Res. 564, On Motion Ordering the Previous Question on the Rule
providing for consideration of H.R. 4378; ``aye'' on rollcall No. 537:
H. Res. 564, On Passage of the Rule providing for consideration of H.R.
4378; ``aye'' on rollcall No. 538: H.R. 4378, On Passage, Making
continuing appropriations for fiscal year 2020, and for other purposes;
``nay'' on rollcall No. 539: H.R. 1423, On Agreeing to the Amendment,
Jordan #1 to the Forced Arbitration Injustice Repeal Act; and ``aye''
on rollcall No. 540: H.R. 1423, On Passage, the Forced Arbitration
Injustice Repeal Act.
____________________