Arbitration agreements are routinely enforced, and should be, when the parties to the agreement have equal bargaining power and an equal level of sophistication. This is typically the case in commercial transactions among merchants. Such transactions were the ones Congress had in mind when it enacted the Federal Arbitration Act. However, when arbitration clauses are buried in fine print, presented on a “take it or leave it” basis in transactions where bargaining power and sophistication are one-sided, as is typically the case in consumer transactions, then general contract principles require closer scrutiny of the fairness.

With perhaps the exception of medical malpractice, no tort action consistently requires as much pre-suit investigation and screening as a potential bad faith case. Most people would never-consider investing their savings in a stock without knowing something about the background of the company. Yet, many lawyers think nothing of investing their scarce time and resources into bad faith cases that have no hope of being successful. In most instances, problems can be avoided by simply conducting an adequate pre-suit investigation into the client's claims. Adequate pre-suit investigation also serves as the cornerstone of any highly successful bad faith case.

Bicycle helmets were first used in the 1880’s, however those early designs were quite different from the vast spectrum of products currently on the market. While the early designs were of the kind that allowed one to fold up the helmet and put it in his back pocket, the modern helmets are much more sophisticated in their design and performance. Although the designs have changed significantly, there has been little change in the bicycle helmet standards used to evaluate the performance of helmets.

Thomas Jefferson stated that anyone who takes away the right to trial by jury is an “enemy of the state”. Apparently, there are a lot of enemies of the state these days. Almost all consumer finance companies have arbitration agreements buried in their loan documents. Most of the time these clauses are hidden in the fine print of their lengthy documents. Even though the consumers don’t see the arbitration agreements, they are bound by them if they sign the loan documents.

There has been a marked increase in tort litigation filed both in Federal and State Courts by corporations and other business entities. The types of claims that are being litigated still include, to a limited extent, actions brought under the Federal Antitrust Statutes and other similar federal laws. We are seeing a significant increase, however, in the utilization of state law claims such as interference with business relations or contractual rights, business fraud, and the like. These claims are usually filed in separate lawsuits in State Court, but may also be included in federal actions as pendent state claims.