IN THE MARYLAND COURT OF APPEALS

 

 

DALE WELLS, et al.

 

v.

 

CHEVY CHASE BANK, F.S.B., et al.

 

 

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       No.  46

       September Term, 2000

 

                    APPELLANTS’ MOTION TO STRIKE THE LETTER

FROM THE AMERICAN ARBITRATION ASSOCIATION

CHARACTERIZING NON-RECORD EVIDENCE

 

The American Arbitration Association (“AAA”) has interjected itself into this appeal at the last moment by filing with the clerk a letter supporting appellees’ factual arguments.[1]  See letter of Florence M. Peterson to Alexander L. Cummings, October 19, 2000 (“the AAA Letter”).  This letter is an improper attempt to introduce non-record evidence (and to very selectively characterize that evidence) by an interested entity who has long missed the date for filing an amicus brief.

The AAA Letter selectively characterizes its rules in a manner that leaves out crucial facts.  Responding to unidentified press accounts not before the Court, AAA asserts that the consumers in this case need only pay $125 to arbitrate their claims.  As we have explained in some detail in our Opening and Reply Briefs, this figure does not accurately explain the actual arbitration fees at issue in this case.  The AAA Letter omits numerous material facts on the subject.  The AAA Letter does not mention that Chevy Chase has adopted rules that significantly alter the landscape from AAA’s rules, for example, such as adding a mediation requirement, E. 38, and adding a Loser Pays Rule.  The AAA Letter does not mention that a consumer wishing to have a telephone hearing under its Consumer Rules must pay an additional $100.  Consumer Rule 6.  The AAA Letter does not address the fact that if a consumer wishes to have an in-person hearing, which is the fundamental minimum required by due process, Opening Brief at 34 n. 18, the consumer must proceed under AAA’s Commercial Rules.  Consumer Rule 6.  Under the Commercial Rules, plaintiffs would be charged a minimum of $950 under the information given to counsel for Appellants by AAA, E. 115-116, or $500 according to Chevy Chase’s reckoning.  Brief at 33.  The AAA Letter’s claim as to $125 fees is only accurate if one assumes that all consumers are willing to submit their legal claims to a stripped down process that amounts to little more than an exchange of letters followed by a ruling.  Finally, by assuming that the case involves less than $10,000, the AAA Letter negatively prejudges the question of whether this case can proceed on a consolidated or class action basis.

This is only the most recent illustration of AAA interjecting itself into appellate litigation between an individual consumer or individual civil rights plaintiff, on the one hand, and a corporate defendant on the other hand.  In each case of which Appellees are aware, AAA has advanced legal or factual arguments supporting the position of the corporate defendant while asserting its neutrality in the matter.  Within the last six months, for example, AAA has filed amicus briefs urging the reversal of Court of Appeals decisions in favor of individual plaintiffs in two cases before the U.S. Supreme Court.  See Green Tree v. Randolph, No. 99-1235 (argued on October 3, 2000) (Truth in Lending Act case) (appeal of ruling for consumer plaintiff in Randolph v. Green Tree, 178 F.3d 1149 (11th Cir. 1999), cert. granted, 120 S. Ct. 1552 (2000) and Circuit City v. Adams, No. 99-1379 (to be argued on November 6, 2000) (civil rights case) (appeal of ruling for civil rights plaintiff in Circuit City Stores v. Adams, 194 F.3d 1070 (9th Cir. 1999), cert. granted, 120 S. Ct. 2004 (2000)).[2]

In short, the AAA Letter is improper and should be stricken.

Respectfully submitted,

 

 

                                                                        _____________________________

F. Paul Bland, Jr.

Trial Lawyers For Public Justice, P.C.

1717 Massachusetts Avenue, N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

(202) 232-7203 (Facsimile)

 

 

_____________________________

John T. Ward

Ward, Kershaw & Minton

113 West Monument Street

Baltimore, MD 21201

(410) 685-6700

(410) 685-6704 (Facsimile)

 

                                                     CERTIFICATE OF SERVICE

 

I, Paul Bland, hereby certify that I have had served by first class mail two copies of Appellants’ Motion to Strike The Letter From The American Arbitration Association Characterizing Non-Record Evidence upon David J. Cynamon, Shaw Pittman, 2300 N Street, N.W., Washington, D.C. 20037; and two copies to Florence M. Peterson, General Counsel, American Arbitration Association, 335 Madison Avenue, New York, New York, 10017-4605, counsel for the defendants on October 24, 2000.

 

 

_____________________________

F. Paul Bland, Jr.

 

 


[1]  In this appeal, Appellants have argued that AAA’s costs are prohibitively high.  See Opening Brief at 8-9, 33-37; Reply Brief at 38-42.  Appellees have challenged the evidence relating to AAA’s fees and argued that AAA’s fees are not really that high.  Brief at 32-36.  The AAA Letter takes Appellees’ side in this factual and legal dispute.

[2]  To their credit, a number of AAA arbitrators have decried AAA’s habit of repeatedly claiming neutrality while intervening in court cases on behalf of corporate defendants.  See Michael Joe, Embattled Brief: AAA Faces Criticism from Two of Its Own for Weighing in on a Mandatory ADR Case, The Recorder, September 27, 2000 (attached as Exhibit 1 to this motion) (“Two months ago, the [AAA] wrote an amicus brief on the defendant’s side in Circuit City, which originated as a challenge to the company’s mandatory arbitration policy.  In letters to AAA officials, the brief drew howls of outrage from two arbitrators who contract for AAA.  They called the brief misguided, disturbing, and possibly a breach of AAA’s duty as a neutral party.”)