Ethical Problems in Class Arbitration

23 Pages Posted: 6 Feb 2012 Last revised: 16 Feb 2012

Andrew M. Powell

Northern Kentucky University

Richard A. Bales

Ohio Northern University - Pettit College of Law

Date Written: February 6, 2012

Abstract

This article examines two significant conflicts of interest that arise in class-action arbitration. The first arises at the beginning of class-action arbitration, where an attorney’s selection and payment of fees to an arbitrator is followed almost immediately by the arbitrator’s selection of an attorney as lead counsel. If the arbitrator picks as lead counsel the attorney who picked the arbitrator, there is a strong appearance of a quid pro quo. The second arises at the end of class-action arbitration, where the arbitrator, who likely has been receiving payment for his or her services since the onset of the class arbitration proceeding, must make an award or approve a settlement between the parties and ensure that class counsel has adequately represented the class as a whole. The arbitrator’s prior receipt of payment from class counsel creates a strong incentive for the arbitrator to be more concerned with the interests of class counsel than with the interests of absent class members. This article argues that Congress should amend the FAA to, among other things, require limited judicial supervision of the process of selecting class arbitrators and the process of issuing a class award or approving a class settlement.

Keywords: arbitration, ethics, ethical issue, class action FAA

Suggested Citation

Powell, Andrew M. and Bales, Richard A., Ethical Problems in Class Arbitration (February 6, 2012). Journal of Dispute Resolution, p. 309, 2011. Available at SSRN: https://ssrn.com/abstract=2000165

Andrew M. Powell

Northern Kentucky University ( email )

Nunn Drive
Highland Heights, KY 41099
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

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