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AAA Introduces Rule Changes Tailored for Mass Arbitrations

By Kaixin Fan, Kathryn Cahoy & Kanu Song on March 25, 2024
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The American Arbitration Association (“AAA”) recently published a set of modified Mass Arbitration Supplementary Rules and a new Consumer Mass Arbitration and Mediation Fee Schedule, both effective January 15, 2024.  The modified rules and fee schedule aim to address the increasingly prevalent tactic of plaintiffs’ firms launching mass arbitration campaigns against defendants with arbitration agreements in their consumer contracts.

The AAA defines a mass arbitration as 25 or more similar demands for arbitrations filed against or on behalf of the same party or related parties where representation of all parties is consistent or coordinated across arbitrations.  The modified rules implement the following key changes:

  • Flat initiation fee.  Whereas the previous AAA mass arbitration rules and fee schedule required defendants to pay hundreds of dollars per case, plus thousands in case management and hearing fees, before even appointing an arbitrator, the modified rules and fee schedule require only a flat initiation fee of $8,125 to appoint a Process Arbitrator who can determine procedural issues – including, for example, disputes over conditions precedent to arbitration, the scope of the demand(s), the selection process for Merits Arbitrator(s), and case administration issues.  Arbitrations that proceed to the merits remain subject to the same fee schedule as before. 
  • Affirmation requirement.  The modified rules require plaintiffs’ lawyers to affirm in each filing that the information provided for each individual arbitration is true and correct to the best of the lawyer’s knowledge.  While it remains uncertain how and to what extent the AAA will give teeth to this requirement, this may have some deterrence effect on the filing of boilerplate (and often inaccurate) claims asserted in mass arbitrations.
  • AAA’s discretion to appoint a mediator.  Under the modified rules, even when one or both parties opt out of mediation, the AAA may, in its sole discretion, appoint a mediator to facilitate discussions between them on processes to improve efficiency.  This change may help to facilitate voluntary use of streamlining procedures like bellwether proceedings in mass arbitrations.

These modified rules and fees have been in place for only a few months, so it remains to be seen whether and what effect they will have on mass arbitration efforts, but companies should keep these provisions in mind when selecting arbitration providers and evaluating potential strategies to mitigate the risk of mass arbitrations.

Photo of Kaixin Fan Kaixin Fan

Kaixin Fan is a member of the Food, Drug, and Device Practice Group. She advises pharmaceutical, biotechnology, and medical device companies as well as trade associations in regulatory matters. She has experience in matters relating to FDA informed consent requirements, advertising and promotion…

Kaixin Fan is a member of the Food, Drug, and Device Practice Group. She advises pharmaceutical, biotechnology, and medical device companies as well as trade associations in regulatory matters. She has experience in matters relating to FDA informed consent requirements, advertising and promotion issues, and other aspects of U.S. federal and state regulation of pharmaceuticals, biologics, and medical devices. Kaixin also assists clients in navigating complex regulatory matters in China, and works closely with local counsel in other Asia-Pacific jurisdictions. She has supported life science transactions by evaluating regulatory compliance of companies and advising on commercial agreements.

Kaixin maintains an active pro bono practice, with experience in the areas of housing, reproductive rights, and gender-based violence.

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Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.

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Photo of Kanu Song Kanu Song

Kanu Song is a litigator who represents clients in the technology and life sciences industries in complex commercial disputes, including class actions, trade secret litigation, contract disputes, and actions brought under unfair competition and consumer protection laws. She has substantive experience in all…

Kanu Song is a litigator who represents clients in the technology and life sciences industries in complex commercial disputes, including class actions, trade secret litigation, contract disputes, and actions brought under unfair competition and consumer protection laws. She has substantive experience in all stages of litigation, including arbitrations and appeals, with a strong track record of success on dispositive motions.

Kanu also maintains an active pro bono practice focused on serving women and children, and assisting individuals and small businesses with intellectual property disputes.

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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Inside Class Actions
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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