A recent Supreme Court decision allowing class action waivers tips the scales in favor of Charles Schwab in its scuffle with Finra over the tactic.
The Charles Schwab Corp.'s continuing fight with Finra over its use of class action waivers in arbitration agreements received a boost from an unlikely source: the U.S. Supreme Court.
In a 5-3 decision June 20, the court said a class action waiver used by American Express Co. in contracts with merchants who use its charge card is enforceable under the Federal Arbitration Act of 1925. The merchants had argued that AmEx's waiver, which precludes any class claims and mandates that all disputes be heard as individual arbitrations, effectively killed their right to bring an antitrust action because the cost of pursuing an antitrust case in arbitration would not make economic sense.
In the Financial Industry Regulatory Authority Inc.'s case against Schwab, a Finra hearing panel this year similarly ruled that the FAA prevented the self-regulatory organization from enforcing its rules that ban the controversial waivers. The panel cited a 2011 Supreme Court case, AT&T Mobility LLC v. Concepcion, in which the high court threw out a California law banning class action waivers in consumer arbitration agreements.
The court's recent decision in American Express v. Italian Colors Restaurant “certainly supports Schwab's argument,” said Heath Abshure, Arkansas' securities commissioner and president of the North American Securities Administrators Association Inc.
“I assume Schwab is probably busy drafting a supplemental brief right now that talks about that [American Express] case,” he said.
The decision hurts the argument that Finra and plaintiff's lawyers have been making in the Schwab case, namely that arbitration agreements can't effectively remove legal rights, said Paul Bland, a senior attorney at Public Justice, a public-interest law firm founded by trial lawyers.
“It's significant, but not the end of the ballgame,” he said. “There are several strong arguments to be made that Schwab shouldn't be allowed to break Finra rules.”
The Supreme Court's decision prompted NASAA to call for congressional action to ensure that investors can pursue small claims as a class.
“We think Congress is going to have to act on it,” Mr. Abshure said. “The SEC could [act] under Dodd-Frank, but all indications are, it's not going to, at least anytime soon,” he said.
NASAA is seeking a sponsor for legislation that would allow class claims below a certain threshold, without banning waivers outright.
Finra filed its disciplinary action against Schwab in 2012, claiming that its arbitration agreements wrongly precluded customers from bringing class action claims against the firm in court. After losing before the hearing panel, Finra appealed to its internal-appeals body, the National Adjudicatory Council. A NAC hearing in the case is set to begin in September.
In May, Schwab dropped the class action waiver language from its client arbitration contracts while the case is being litigated.
Spokespeople for both Finra and Schwab declined to comment.
