Universes Colliding: The Constitutional Implications of Arbitral Class Actions

Abstract

Class actions conducted through the public judicial system have long required elaborate procedures and judicial involvement to ensure due process for all class members. By contrast, arbitration is a typically private adjudicatory process, often with truncated procedures and limited rights of appeal. Where class actions are adjudicated in a private arbitration, a set procedure for arbitral class actions, or for judicial involvement, if at all, is ill defined and unregulated.

Class arbitrations are occurring increasingly under varied practices throughout the country. Some class arbitrations call for various levels of court involvement throughout the class arbitration process, such as where the court retains responsibility to conduct or approve key decisions regarding certification, notice and fairness of the final disposition, while the private arbitrator adjudicates the merits of the class claims. Under another approach, which is perhaps more consistent with conceived notions of private arbitration, class arbitration is adjudicated entirely with no court involvement and no public disclosure of procedures.

This article examines the constitutional, policy, and practical implications of private arbitrators administering class actions in arbitration. A specific focus is on whether due process must be accorded to absent class members in a class arbitration setting under any or all of the varied approaches. I assert that, as a matter of constitutional import, or simply practical necessity, a minimal standard of procedural fairness is required for arbitral class actions to hold legitimacy.

Keywords: class actions, arbitration, procedures, due process, arbitral class actions

JEL Classification: K41