|WILMER, CUTLER & PICKERING
2445 M STREET, N.W.
WASHINGTON, D.C. 20037-1420
ERIC J. MOGILNICKI
April 19, 2000
Re: Alternative Dispute Resolution for Consumer Transactions in the Borderless Online Marketplace
Dear Ms. Wellbery and Mr. Clark:
Thank you for the opportunity to provide written comments regarding the above-captioned public workshop to be held by the U.S. Department of Commerce and Federal Trade Commission. As you know, many of the issues to be discussed at the workshop relate to ongoing litigation and legislative deliberations in the U.S. regarding the use of arbitration to resolve consumer disputes. For example, the Supreme Court recently granted certiorari in the case of Green Tree Financial Corp. v. Randolph, which involves the validity of an arbitration agreement between a consumer and financial institution. Similarly, the Senate Subcommittee on Administrative Oversight and the Courts recently held hearings on a group of bills relating to the use of arbitration to resolve business, employment and consumer disputes.
I submitted a brief in support of cert. in the Randolph case on behalf of the American Bankers Association, American Financial Services Association, Consumer Bankers Association, and National Home Equity Mortgage Association; and testified on behalf of the American Bankers Association, Consumer Bankers Association, American Financial Services Association and National Retail Federation before the Senate Subcommittee. Each of these organizations includes many financial institutions that are presently utilizing arbitration. I believe it is important that the views of such institutions be represented in discussions of public policy regarding arbitration, and therefore request an opportunity to participate in your workshop.
I have attached as written comments: 1) my testimony before the Senate Subcommittee on Administrative Oversight and the Courts on March 1, 2000; 2) a supplement to that testimony dated March 7, 2000; and 3) my response of March 22, 2000 to follow-up questions by Subcommittee Chair Senator Charles Grassley and by Senator Russell Feingold.
These materials describe some of the circumstances in which arbitration is used presently to resolve disputes about consumer transactions. In particular, they outline the benefits and fairness of agreements to arbitrate -- including agreements to arbitrate that are entered into before a dispute arises and that call for binding arbitration. These materials also debunk some of the unfair criticisms of arbitration procedures that recur in legal briefs, legislative testimony and a few of the previously-filed comments here.
I look forward to the opportunity to discuss how the present experiences of financial institutions relate to the emerging world of alternative dispute resolution for online consumer transactions.