Elastic Batch and Bellwether Proceedings in Mass Arbitration
Note
Elastic Batch and Bellwether Proceedings in Mass Arbitration
Bennett Rogers*
Since the Advisory Committee revised Federal Rule of Civil Procedure 23 in 1966,[1] multiparty dispute resolution has become one of the world’s most expensive cat-and-mouse games. In an ever-changing aggregative landscape, both plaintiffs and defendants have aimed to establish a favorable legislative and jurisprudential body. But from the abundance of creative arguments and resourceful techniques, volatility has become the only constant. The defense has made the latest move in this space, and courts are currently evaluating the merits of a technique familiar to complex litigation but novel to arbitration: batch and bellwether proceedings.
Traditionally, batching is when numerous cases are aggregated and the parties agree to try a small number of cases before returning to the settlement table.[2] Similarly, a bellwether trial is when the parties with joined cases agree to try a representative case to anchor settlement talks.[3] The defense bar has not only adopted these proceedings in arbitration, but has also designed arbitration agreements that allow for a limited number of consecutive proceedings in order to accomplish its goals of reducing costs and adjudicating at a gradual pace. It has also found a compatible arbitral institution that promotes batch and bellwether proceedings with streamlined discovery.[4] While litigation and arbitration procedures certainly overlap, they are not identical and certain practices cannot simply be grafted from one to the other. Batch and bellwether proceedings can work in the arbitration context but need significant structural adaptations to succeed. These revisions must embrace what can be termed the elastic bellwether method, where the parties are adequately incentivized to resolve disputes because failure to do so will proportionately increase or decrease the number of arbitrations per batch, or eventually bring all the claims back into court. An elastic system will foreclose both “bottleneck” delay tactics by defendants and “shakedown” arbitration-fee generation by plaintiffs because the process is dictated by the merits of the claims brought before the tribunal, not the creativity or gamesmanship of the parties.[5]
This Note will first succinctly review the history of aggregative litigation, including the decline of traditional Rule 23 class actions, the proliferation of arbitration agreements, and both the legislative and judicial support for this change. Next, it will examine plaintiffs’ response to the rise of arbitration with the creation of mass arbitration networks and explain why some companies started to move away from arbitration. Then it will consider the defense bar’s response to mass arbitration with batch and bellwether proceedings, examine the current bellwether arbitration cases moving through the courts, and introduce the latest arbitral institution making headways with its rules and procedures: New Era ADR. Finally, it will identify the additional needs of batch and bellwether arbitration, advance the elastic bellwether model, and demonstrate the theory’s ability to remedy the current issues plaguing mass arbitrations.
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*J.D. Candidate, Notre Dame Law School, 2025; B.A., University of Notre Dame, 2020. Thanks to Professors Jay Tidmarsh and Roger Alford for their mentorship; Shelly Friedland and Ashley Keller for their insights; Andrew Young, Jake Rinear, and Andrew Garden for their feedback; and my brilliant colleagues at the Notre Dame Law Review for their edits. Finally, thank you to my mother, Nantiya Ruan, for inspiring me to be a lawyer. All opinions and errors are my own.
[1]See Fed. R. Civ. P. 23 advisory committee’s note to the 1966 amendment (“The categories of class actions in the original rule were defined in terms of the abstract nature of the rights involved . . . .”).
[2]For a discussion of the traditional litigation counterpart, seeMichael J. Saks & Peter David Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. 815, 818 (1992).
[3]See Loren H. Brown, Matthew A. Holian & Arindam Ghosh, Bellwether Trial Selection in Multi-district Litigation: Empirical Evidence in Favor of Random Selection, 47 Akron L. Rev. 663, 667–69 (2014).
[4]See J. Maria Glover, Mass Arbitration, 74 Stan. L. Rev. 1283, 1369 (2022) (“Unlike the CPR, New Era ADR provides for three bellwether trials, the results of which are precedential in cases involving common issues of law and fact.”).
[5]See Alison Frankel, Column: Ticketmaster Customers Attack ‘Kafkaesque’ Mass Arbitration Rules, Reuters (Mar. 20, 2023, 5:10 PM), https://www.reuters.com/legal/litigation/column-ticketmaster-customers-attack-kafkaesque-mass-arbitration-rules-2023-03-20/ [https://perma.cc/D9YL-HJEG]; Andrew J. Pincus, Archis A. Parasharami, Kevin Ranlett & Carmen Longoria-Green, U.S. Chamber of Com. Inst. for Legal Reform, Mass Arbitration Shakedown: Coercing Unjustified Settlements 25 (2023).