thinking the unthinkable… hilary b. miller payday loan bar association november 14, 2008
TRANSCRIPT
Thinking the unthinkable…
Hilary B. MillerPayday Loan Bar AssociationNovember 14, 2008
Proposed legislation to amend the FAA State common-law defenses based on
principles of contract law (unconscionability, etc.; e.g., Szetela)
Agency rulemaking (e.g., FNMA) State statutory enactments
determining class-action waivers to be unconscionable
Changes in S.Ct. composition
Hilary B. Miller - November 14, 2008
Class actions will proceed Risk of class arbitration Jury trial No matter what, protracted litigation
over procedural matters
Hilary B. Miller - November 14, 2008
Sidestep risk of bet-the-company litigation
Minimize incentives for plaintiffs’ class bar
Address problems one at a time
Hilary B. Miller - November 14, 2008
The best dispute resolution mechanism is the one that is complete before the customer has consulted counsel• Solve the problem at lowest-cost opportunity• Retain the customer• Minimize viral spread
Adopt a “customer satisfaction guaranty”• Ensure that customers know about it• Put teeth in it• Empower CSRs and front-line managers
Hilary B. Miller - November 14, 2008
Drafting opportunities to create enforceable pre-suit settlement opportunities:• Notice-and-opportunity-to-cure clauses• Contractual “offer of judgment” provisions• Mandatory mediation with plaintiff in person
Drafting opportunities to create post-suit benefits:• Waiver of trial by jury• In states that allow, submission to simplified
dispute resolution (e.g., CPLR)• Bump-up clause/attorneys’ fees
Hilary B. Miller - November 14, 2008
Disclosure Make it a bargained-for deal term
• Pay the customer/offer a reduced price if customer will agree to your pre-dispute dispute-resolution program
• Allow the customer a bona fide choice at the time of contracting (not post-transaction opt-out)
Contract with respect to favorable state law, if possible
Hilary B. Miller - November 14, 2008
Anticipate No-A Day arrival in next year Some post-No-A-Day lawsuits will
relate to previous putative misconduct Forms in use now must anticipate that
they will be the basis of post-No-A-Day disputes
Suggested steps are compatible with existing class-action waivers and arbitration clauses
Hilary B. Miller - November 14, 2008