Since the last publication of this Guide, this Arbitration been one of the most heavily debated provisions. Despite debate, virtually nothing has changed on the topic. Binding arbitration clauses are still permitted in Retail Installment Sales Contracts, as well as other documents pertaining to the sale of a vehicle.
The purpose of arbitration is to keep the dealer out of a courtroom. Two parties will agree in a contract that allows any dispute to be resolved by a neutral 3rd party arbitor. This is a private person hired by the parties to oversee the disputes. The arbitration clause generally specifies the rules, which are different from court, in order to keep costs at a minimum and ensure an equitable resolution.
The Colorado Uniform Arbitration Act (C.R.S. 13-22-201, et seq.) requires that a court compel arbitration (i.e., dismiss the case from court) when there is an arbitration provision in the contract. However, the process can also be agreed upon after the dispute arises.
The Rocky Mountain Bank Note forms series provides options for Retail Installment Sales Contracts both with arbitration provisions (645-ARB) and without (649 RISC). If you have questions about which you use, or would like to use, please contact CADA.
What’s Happened in the Since 2016?
The Obama-era Consumer Financial Protection Bureau promulgated a rule that would invalidate binding arbitration provisions and allow consumers the right to take their case directly to court. After much speculation, both houses of Congress passed a resolution of disapproval on this rule. After the resolution was signed by President Trump in November 2017, it struck the rule from the record, reinstating arbitration provisions.
These provisions were then tried in the Supreme Court in Epic Systems Corporation v. Lewis (2018). The Court held that arbitration clauses can be used to prevent a party from joining a class action lawsuit against the other, even if the parties are an employer/employee. Class actions were one of the most hotly contested aspects of the CFPB’s arbitration rule the year before. The decision gave finality to the acceptability of arbitration clauses and set us back in a position very similar to where we were prior to 2016.
Why Use Arbitration?
Those dealers who select forms with arbitration provisions generally do so because of the lower costs and shorter timeline between the filing and resolution of a dispute. The procedural obstacles of court do not exist here and the process is less hostile between the parties Punitive damages are not recoverable in arbitration. Finally, class action waivers can be used in arbitration provisions.
However, before committing to the process, dealers should be aware that there are typically no appeal rights, as there would be in court. Also, arbitors tend to find equitable solutions, sometimes settling things in the middle, as opposed to the Court’s decision which declares a winner and loser.
Who are the neutral Arbitors?
A well-written arbitration clause will generally list 2 or more arbitration groups from which to select to avoid the appearance of a ‘take it or leave it’ contract. Below is a list of some of the leading arbitration organizations in the nation:
American Arbitration Forum (AAA)
Nationwide with regional office in Denver; can be expensive. Headquarters in New York.
Better Business Bureau (BBB)
Contact your local BBB
Complaints filed with local BBB; Attorneys not required. Must be a member of BBB to utilize.
Judicial Arbitration Group (JAG)
Local to Colorado; well respected judges and attorneys; very expensive typically
Judicial Arbitration & Media Services (JAMS)
Nationwide with resolution center in Denver; headquartered in California.
Legal Resolution Center
Local to Colorado; former federal and state judges/magistrates
How do I write a strong arbitration clause?
While the Rocky Mountain forms may include an arbitration clause, you may elect to create your own. So long as the provisions are agreed to during the contract execution, they will guide the process. You can use the arbitration clause to determine:
Who will arbitrate;
Where the arbitration will happen;
What types of disputes will be subject to the arbitration;
Which claims might be excluded (claims under a certain monetary threshold);
If certain transactions like repossessions or injunctions will be excluded;
Who will pay for the costs of arbitration, or will they be split;
What law controls the Arbitor’s resolution; or
Whether the losing party will be able to appeal the arbitration to a District Court.
Oftentimes, the most serious limitation to crafting your own arbitration agreement is the available space on the face of the contract. While an arbitration clause may appear on the contract itself, you may also incorporate an arbitration clause by reference in your contract, and draft the arbitration clause as a separate agreement, to be signed simultaneous to the contract.
If you do decide to draft your own arbitration provision, we recommend that you consult legal counsel in the process. A poor drafting of such a clause could invalidate the agreement, landing the dealer back in court.
Final Drafting Considerations:
If you elected to draft your own arbitration clause or use one separate than what appears on your retail forms, consider that the clauses in your Retail Installment Sales Contract and Buyer’s Order need to be consistent. Contradictory terms can cause problems. In the event you have a separate document outlining arbitration, you must be certain to include it in the deal paperwork. This is something that can often be overlooked. Finally, consider what your response will be to a consumer who declines to sign an arbitration agreement. Whether you go forward with the deal or not is a business decision left up to each individual dealer. But consider what your risks are and try to apply your decision uniformly in every situation.
Summary of Applicable Colorado Revised Statutes (C.R.S.) and Regulations:
C.R.S. 13-22-201, et seq.
Colorado Uniform Arbitration Act (UAA)
9 U.S.C. 1, et seq.
Federal Arbitration Act
584 U.S. ___ (2018); Docket Number 16-285
Epic Systems Corporation v. Lewis (2018)
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