Last week, during the April 29 observance of “Arbitration Fairness Day,” Senator Russell Feingold introduced into the Senate the Arbitration Fairness Act of 2009 (s. 931).  Senator Feingold’s website announcement states:

The bill would make pre-dispute agreements requiring arbitration for any employment, consumer, franchise, or civil rights disputes unenforceable.  The bill does not prohibit arbitration, but rather prevents a party with greater bargaining power from forcing individuals into arbitration through a contractual provision and ensures that citizens have a true choice between arbitration and the traditional civil court system. Similar legislation, H.R. 1020, was previously introduced in the House of Representatives by Rep. Hank Johnson (D-GA). Like Johnson’s bill, Feingold’s legislation does not generally apply to collective bargaining agreements, but it includes a new provision to reverse a recent Supreme Court ruling (14 Penn Plaza v. Pyett) that arbitration provisions contained in such agreements can waive an employee’s right to enforce employment discrimination laws in court.

Momentum appears to be gathering in support of the bill, as evidenced by the creation of Fair Arbitration Now, a coalition of consumer and other groups lobbying for passage of the AFA which organized and celebrated Arbitration Fairness Day.  Public Citizen’s Consumer Law and Policy Blog has a series of posts here regarding the proposed Act, including criticism on the controversial public position recently taken by the ABA Section on Dispute Resolution’s Leadership Council (to recommend a pre-dispute opt-out provision for the consumer rather than a ban on pre-dispute arbitration agreements).  Today, the Chair of the ABA Section wrote to members reporting that the Executive Committee of the Section will now ask the Council to refrain from going forward with that recommendation.  Clearly, a flip-flop will only engender further controversy.