II 

115TH CONGRESS 

1ST SESSION S. 537 

To amend title 9 of the United States Code with respect to arbitration. 

IN THE SENATE OF THE UNITED STATES 

MARCH 7, 2017 

Mr. FRANKEN (for himself, Ms. BALDWIN, Mr. BLUMENTHAL, Mr. BOOKER, 

Mr. BROWN, Mr. CASEY, Mr. COONS, Mr. DURBIN, Ms. HEITKAMP, Ms. 

HIRONO, Mr. LEAHY, Mr. MARKEY, Mr. MENENDEZ, Mr. MERKLEY, 

Mrs. MURRAY, Mr. REED, Mr. SANDERS, Mr. SCHATZ, Mrs. SHAHEEN, 

Mr. UDALL, Ms. WARREN, Mr. WHITEHOUSE, and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

A BILL 

To amend title 9 of the United States Code with respect 

to arbitration. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Arbitration Fairness 

5 Act of 2017’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 


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1 (1) The Federal Arbitration Act (now enacted 

2 as chapter 1 of title 9 of the United States Code) 

3 was intended to apply to disputes between commer4 cial entities of generally similar sophistication and 

5 bargaining power. 

6 (2) A series of decisions by the Supreme Court 

7 of the United States have interpreted the Act so 

8 that it now extends to consumer disputes and em9 ployment disputes, contrary to the intent of Con10 gress. 

11 (3) Most consumers and employees have little 

12 or no meaningful choice whether to submit their 

13 claims to arbitration. Often, consumers and employ14 ees are not even aware that they have given up their 

15 rights. 

16 (4) Mandatory arbitration undermines the de17 velopment of public law because there is inadequate 

18 transparency and inadequate judicial review of arbi19 trators’ decisions. 

20 (5) Arbitration can be an acceptable alternative 

21 when consent to the arbitration is truly voluntary, 

22 and occurs after the dispute arises. 


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1 SEC. 3. ARBITRATION OF EMPLOYMENT, CONSUMER, ANTI2 TRUST, AND CIVIL RIGHTS DISPUTES. 

3 (a) IN GENERAL.—Title 9 of the United States Code 

4 is amended by adding at the end the following: 

5 ‘‘CHAPTER 4—ARBITRATION OF EMPLOY6 MENT, CONSUMER, ANTITRUST, AND 

7 CIVIL RIGHTS DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

8 ‘‘§ 401. Definitions 

9 ‘‘In this chapter— 

10 ‘‘(1) the term ‘antitrust dispute’ means a dis11 pute— 

12 ‘‘(A) involving a claim for damages alleg13 edly caused by a violation of the antitrust laws 

14 (as defined in subsection (a) of the first section 

15 of the Clayton Act (15 U.S.C. 12)) or State 

16 antitrust laws; and 

17 ‘‘(B) in which the plaintiffs seek certifi18 cation as a class under rule 23 of the Federal 

19 Rules of Civil Procedure or a comparable rule 

20 or provision of State law; 

21 ‘‘(2) the term ‘civil rights dispute’ means a dis22 pute— 

23 ‘‘(A) arising under— 


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1 ‘‘(i) the Constitution of the United 

2 States or the constitution of a State; or 

3 ‘‘(ii) a Federal or State statute that 

4 prohibits discrimination on the basis of 

5 race, sex, disability, religion, national ori6 gin, or any invidious basis in education, 

7 employment, credit, housing, public accom8 modations and facilities, voting, or pro9 gram funded or conducted by the Federal 

10 Government or State government, includ11 ing any statute enforced by the Civil 

12 Rights Division of the Department of Jus13 tice and any statute enumerated in section 

14 62(e) of the Internal Revenue Code of 

15 1986 (relating to unlawful discrimination); 

16 and 

17 ‘‘(B) in which at least 1 party alleging a 

18 violation of the Constitution of the United 

19 States, a State constitution, or a statute pro20 hibiting discrimination is an individual; 

21 ‘‘(3) the term ‘consumer dispute’ means a dis22 pute between an individual who seeks or acquires 

23 real or personal property, services, securities or 

24 other investments, money, or credit for personal, 

25 family, or household purposes and the seller or proVerDate Sep 11 2014 03:48 Mar 10, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S537.IS S537

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1 vider of such property, services, securities or other 

2 investments, money, or credit; 

3 ‘‘(4) the term ‘employment dispute’ means a 

4 dispute between an employer and employee arising 

5 out of the relationship of employer and employee as 

6 defined in section 3 of the Fair Labor Standards 

7 Act of 1938 (29 U.S.C. 203); and 

8 ‘‘(5) the term ‘predispute arbitration agree9 ment’ means any agreement to arbitrate a dispute 

10 that had not yet arisen at the time of the making 

11 of the agreement. 

12 ‘‘§ 402. Validity and enforceability 

13 ‘‘(a) IN GENERAL.—Notwithstanding any other pro14 vision of this title, no predispute arbitration agreement 

15 shall be valid or enforceable if it requires arbitration of 

16 an employment dispute, consumer dispute, antitrust dis17 pute, or civil rights dispute. 

18 ‘‘(b) APPLICABILITY.— 

19 ‘‘(1) IN GENERAL.—An issue as to whether this 

20 chapter applies to an arbitration agreement shall be 

21 determined under Federal law. The applicability of 

22 this chapter to an agreement to arbitrate and the 

23 validity and enforceability of an agreement to which 

24 this chapter applies shall be determined by a court, 

25 rather than an arbitrator, irrespective of whether the 


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1 party resisting arbitration challenges the arbitration 

2 agreement specifically or in conjunction with other 

3 terms of the contract containing such agreement. 

4 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

5 Nothing in this chapter shall apply to any arbitra6 tion provision in a contract between an employer and 

7 a labor organization or between labor organizations, 

8 except that no such arbitration provision shall have 

9 the effect of waiving the right of an employee to 

10 seek judicial enforcement of a right arising under a 

11 provision of the Constitution of the United States, a 

12 State constitution, or a Federal or State statute, or 

13 public policy arising therefrom.’’. 

14 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

15 (1) IN GENERAL.—Title 9 of the United States 

16 Code is amended— 

17 (A) in section 1, by striking ‘‘of seamen,’’ 

18 and all that follows through ‘‘interstate com19 merce’’; 

20 (B) in section 2, by inserting ‘‘or as other21 wise provided in chapter 4’’ before the period at 

22 the end; 

23 (C) in section 208— 


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1 (i) in the section heading, by striking 

2 ‘‘Chapter 1; residual application’’ 

3 and inserting ‘‘Application’’; and 

4 (ii) by adding at the end the fol5 lowing: ‘‘This chapter applies to the extent 

6 that this chapter is not in conflict with 

7 chapter 4.’’; and 

8 (D) in section 307— 

9 (i) in the section heading, by striking 

10 ‘‘Chapter 1; residual application’’ 

11 and inserting ‘‘Application’’; and 

12 (ii) by adding at the end the fol13 lowing: ‘‘This chapter applies to the extent 

14 that this chapter is not in conflict with 

15 chapter 4.’’. 

16 (2) TABLE OF SECTIONS.— 

17 (A) CHAPTER 2.—The table of sections for 

18 chapter 2 of title 9, United States Code, is 

19 amended by striking the item relating to section 

20 208 and inserting the following: 

‘‘208. Application.’’. 

21 (B) CHAPTER 3.—The table of sections for 

22 chapter 3 of title 9, United States Code, is 

23 amended by striking the item relating to section 

24 307 and inserting the following: 

‘‘307. Application.’’. 


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1 (3) TABLE OF CHAPTERS.—The table of chap2 ters for title 9, United States Code, is amended by 

3 adding at the end the following: 

‘‘4. Arbitration of employment, consumer, antitrust, and civil rights 

disputes ......................................................................... 401’’. 

4 SEC. 4. EFFECTIVE DATE. 

5 This Act, and the amendments made by this Act, 

6 shall take effect on the date of enactment of this Act and 

7 shall apply with respect to any dispute or claim that arises 

8 on or after such date. 

Æ 


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