Lessons Learned in Arbitration

Working with NACA attorney Ben Dupre and Berkeley’s East Bay Community Law Center, my firm recently received a $1.1 million award in a case where a disabled man’s Social Security benefits were stolen when he was a victim of Identity Theft and fraud. We brought ID theft, Electronic Funds Transfer Act, and related claims, after the bank refused to return $153 in disability benefits stolen by an identify thief. Our team pulled together and endured an approximate three-year battle to get here.

This makes eight cases that my office has tried since 2014 where we’ve been able to obtain punitive and/or treble damages for the consumer. And I am very grateful that four of those eight cases resulted in outcomes over $1 million (the eight cases ranged from $770,000 to $1.8 million). Trying these cases doesn’t give the broader relief of class actions, but we’ve improved the lives of these consumers in ways they never imagined. And hopefully, we caused some creditors to change their practices.

I’d like to share some lessons learned from this case that you may be able to apply if you have a similar case in the future.

Two Lessons Learned

1. Don’t be afraid to litigate about a very small amount; this case centered around $153 a bank refused to return (of $850 originally in dispute).
2. A consumer’s alleged drug use doesn’t excuse a creditor’s unlawful conduct or the harm it caused.

Two Lessons I Wish I Hadn’t Learned

1. Expect to spend a lot more time, and some restless nights, when trying a case under a statute with little controlling authority (like the EFTA).
2. Responding to every argument in a defendant’s fee opposition may give you a stronger sense of security, but it may not get you paid for all the time you spend.

Two Lessons I Re-Learn in Every Case

1. Defendants think that misrepresenting facts will help them win, but if the fact finder recognizes the betrayal and internalizes it, it then becomes a betrayal to the fact finder, and it often causes the defendants to lose the case and leads to punitive damages.
2. It takes a lot of perseverance and reserves to survive cases that are drawn out for years, especially against a billion-dollar defendant that will fight you every step of the way. Even as I write this, it remains to be seen whether defendant has given up yet.

You can find more of my tips/traps in the new chapter “How to Conduct Individual Arbitrations” in NCLC’s Consumer Arbitration Agreements book.