BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2656
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          Date of Hearing: April 23, 2002 

                           ASSEMBLY COMMITTEE ON JUDICIARY
                               Ellen M. Corbett, Chair
                    AB 2656 (Corbett) - As Amended: April 17, 2002  
                                           
           SUBJECT  :   CONSUMER ARBITRATION COMPANIES: DATA COLLECTION

           KEY ISSUE:  SHOULD PRIVATE JUDGING COMPANIES THAT CHOOSE TO HANDLE  
          MANDATORY CONSUMER ARBITRATIONS PROVIDE BASIC DATA REGARDING  
          THEIR PRIOR INVOLVEMENT IN SUCH CASES? 

                                      SYNOPSIS
          
          In its February and March informational hearings, the Committee  
          heard repeated and troubling allegations that consumer  
          arbitrations may produce outcomes that are unfair to consumers.   
          This bill, requiring that private judging companies begin to  
          provide some basic information regarding their involvement in  
          consumer arbitrations, is designed to reduce incentives to favor  
          corporate parties, and to help address mounting public  
          skepticism about the fairness of such arbitrations.

           SUMMARY  :   Seeks to begin to shed some sunshine on the consumer  
          arbitration industry.  Specifically,  this bill  requires that  
          private judging companies collect and make available to the  
          public some basic data regarding their involvement in, and the  
          outcome of, mandatory consumer arbitrations.

           EXISTING LAW  : 

          1)Generally enforces a pre-dispute agreement to submit a future  
            legal controversy to binding arbitration.  (Code of Civil  
            Procedure 1281.  All further statutory references are to this  
            code unless otherwise noted.)

          2)Permits the parties to select a method for the appointment of  
            an arbitrator, or to petition the court for the appointment of  
            an arbitrator if they cannot agree.  (Section 1281.6.)

          3)Allows private arbitrators to issue binding decisions that are  
            legally enforceable but essentially unreviewable by a court;  
            there is no appeal from an arbitrator's decision to a public  
            court, even if the arbitration agreement expressly provides  
            for judicial review.  (Crowell v. Downey Community Hospital  








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            Foundation, 95 Cal. App. 4th 730 (2002).)

          4)Allows arbitrators to conduct arbitrations without allowing  
            for discovery, complying with the rules of evidence, or  
            explaining their decisions in written opinions.  (Sections  
            1283.1; 1282.2; 1283.4) 

          5)Permits arbitrations to be conducted in private with no public  
            scrutiny.  (Ting v. AT&T, 192 F. Supp. 2d 902 (N.D. Cal.  
            2002).)

          6)Permits arbitrators to disregard the law and/or the evidence  
            in rendering their decisions.  Awards may be enforced by the  
            court, even if they are legally and factually erroneous.   
            (Moncharsh v. Heily & Blas? et al, 3 Cal.4th 1 (1992).) 

          7)Allows arbitrators substantial if not absolute immunity from  
            civil liability for acts relating to their decisions, even in  
            the case of bias, fraud, corruption or other violation of law.  
             (Baar v. Tigerman, 140 Cal. App. 3d 979 (1983).)

          8)The only relief that a court may grant to an arbitral party,  
            no matter what misconduct has taken place in the arbitration,  
            is to vacate the award and return the parties to further  
            arbitration, perhaps with the same arbitrator or arbitration  
            company.  The grounds on which an arbitrator's decision may be  
            vacated are narrow and the standards are high.  (Section  
            1282.6.)

           FISCAL EFFECT  :   As currently in print, this bill is keyed  
          non-fiscal.

           COMMENTS  :  As the Committee heard in its February and March 2002  
          informational hearings, in contrast to the proceedings of public  
          courts, virtually all consumer arbitrations are conducted in  
          secret because the arbitration clauses or rules of the  
          designated provider impose secrecy.  As the Committee also  
          heard, however, there is nothing inherent in the nature of  
          arbitration or the function of the arbitrator that requires such  
          secrecy.  Indeed, the Office of the Independent Administrator  
          that overseers Kaiser health care arbitrations already publishes  
          some data regarding its process and results, and the Department  
          of Managed Health Care will soon be collecting more information  
          regarding all health care arbitrations because it feels such  
          openness is needed for the public.  








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          Moreover, barring the arbitration doors to any public scrutiny  
          only feeds apparently growing public skepticism that arbitration  
          is really as fair as its proponents claim.  In order to address  
          these concerns and reduce any bias that may exist in favor of  
          corporate repeat-players in consumer arbitration, AB 2656  
          outlines some basic data that private judging companies must  
          keep and disclose when they choose to handle consumer  
          arbitrations.  The author state that this data will be of  
          interest both to consumers, to businesses and to scholars and  
          policymakers who wish to study and evaluate how the arbitration  
          industry is working and whether there are differences among  
          individual private judging companies.  According to the author,  
          this bill is not an end but a beginning in the state's effort to  
          start understanding what really is happening in the rapidly  
          growing private judging industry.

          In support of the bill, Consumers Union states: "AB 2656  
          (Corbett) will provide greater accountability for arbitration  
          provider organizations by requiring them to plainly disclose to  
          the public information such as the number of arbitrations  
          handled for a particular business and the outcome of those  
          arbitrations.  Consumers deserve to know how many other cases a  
          private judging company such as the American Arbitration  
          Association has handled for a particular business, such as a  
          bank, and whether the business or the consumer won most of those  
          cases.

          Public disclosure of arbitration results is particularly  
          important because of the risk that a business which is a "repeat  
          player" in arbitration might receive more favorable treatment in  
          the arbitration than an individual consumer who may only have  
          one arbitration with a private judging company. This might occur  
          as a result of the manner in which the arbitration procedure is  
          structured."

          The Consumer Attorneys of California add: "Consumer Attorneys  
          view AB 2656 as crucial to informing the public about the  
          currently very secretive nature of arbitration proceedings.
          Currently, we do not have access to detailed information about  
          the arbitration process.  Arbitrations are conducted in secret  
          and results are hidden from the public.  Therefore, the public  
          may never become aware of patterns of illegal or deceptive  
          practices.  We believe that such public information is a crucial  
          first step to shedding light on this backroom process."








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          This bill has also merited special attention by the Los Angeles  
          Times, which editorialized on March 16, 2002, that "HMO leaders  
          and Sacramento legislators should embrace a package of bills  
          introduced this week that would ? require private judging  
          corporations to report the results of arbitration proceedings." 

           Preserving Privacy  .  Notwithstanding the substantial public  
          interest in the fairness of consumer arbitrations, it is  
          important that the privacy of arbitration parties be preserved.   
          Therefore, AB 2656 does not require the collection of any  
          personal or confidential data regarding individual or business  
          parties. 

          Because private judging companies may do a large volume of  
          mediation business with corporate clients which, like any other  
          revenue stream, may contribute to an incentive to favor  
          repeat-players in arbitration, this bill also provides that the  
          private judging company indicate the number of times that the  
          non-consumer party has been involved in mediations with the  
          private judging company.  It may be contended that information  
          regarding prior involvement with a private judging company as a  
          party to a mediation is confidential.  However, this argument  
          appears to rest on a potential misunderstanding of the mediation  
          confidentiality law.  In order to foster open communication in  
          mediation, the statements made by parties during the mediation  
          are wisely privileged for the purpose of civil actions in court.  
           (Evidence Code section 1115 et seq.)  Of course, there appears  
          to be no such policy justification, and therefore no needed  
          confidentiality protection regarding the simple fact that a  
          party has participated in mediation.  Indeed, a party's  
          participation in family court mediation, for example, is  
          currently a matter of public record (though the statements made  
          in such proceedings are of course privileged). 
           
          Author's Amendments to Clarify Language.   The author has  
          informed the Committee of some technical amendments to clarify  
          some of the language.  The introductory paragraph of the bill  
          should read:

            1281.96. Any private judging company that  participates in   
            administers or is otherwise involved in, a consumer  
            arbitration shall collect, publish at least quarterly, and  
            make available to the public in a computer searchable format,  
            which shall be accessible at the Internet Web site of the  








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            private judging company, if any, and on paper upon request,  
            all of the following information regarding each consumer  
            arbitration:


           Prior Related Legislation  .  SB 475 (Escutia), Ch. 362, Stats.  
          2001, established ethical obligations for private arbitrators.

           Pending Related Legislation.   AB 2504 (Jackson) regarding  
          judicial recruitment and employment by private judging  
          companies; AB 2574 (Harman) regarding financial conflicts of  
          interest between private judging companies and parties in  
          consumer arbitration; AB 3029 (Steinberg) regarding designated  
          private judging companies, consulting and solicitation; AB 3030  
          (Corbett) regarding immunity of private judging companies.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Employment Lawyers Association
          Congress of California Seniors
          Consumer Attorneys of California
          Consumer's Union
          Older Women's League of California

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :  Kevin G. Baker / JUD. / (916) 319-2334