More on Trump, Stormy Daniels, and Arbitration

This is a very, very long post, probably my longest.  I’ve received many questions the last few days about the arbitration issues surrounding the Trump and Stormy Daniels affair.  The purported hush agreement between Trump and Daniels contains an arbitration clause, and there is a debate whether the arbitration clause is enforceable and what does that mean.  The facts from the Trump/Daniels affair are rich for exploring the intricacies of arbitration law, and again this post is very long.  But if you are interested (or perhaps need a sleep-aid), below is my attempt to answer some of these questions, along with some concluding concerns.

ISSUE 1: prosecution for violations of federal campaign laws

Can the arbitration clause in the hush agreement block the government from prosecuting Trump, his consigliere/attorney Cohen, or any of Trump’s minions for violations of federal campaign laws?  Did Trump win the popular vote?  The answer to both questions is a resounding “HELL NO!”  The most fundamental principle in arbitration law is that arbitration is a matter of agreement, and the only two purported parties to the arbitration clause are Trump and Stormy.  The government is not a party to this arbitration clause, and so the arbitration clause will not block the government from prosecuting Trump or his bumbling minions (didn’t he repeatedly promise to hire the best people?) for violations of federal campaign laws.  The Supreme Court decided this legal issue in a 2002 case called Equal Employment Opportunity Commission v. Waffle House.  In the Waffle House opinion, the Supreme Court held that a private agreement to arbitrate between Waffle House and one of its employees cannot block the federal government from bringing its own enforcement action against Waffle House for violations of federal law.  The government is simply not a party to the hush agreement and the arbitration clause buried in the agreement.  A key goal of Stormy’s recent lawsuit is to enable her to tell her story publicly.  If the government brings an enforcement action against Trump, Cohen, or a Trump minion for violations of federal campaign laws, Stormy may be able to tell some or all of her story perhaps as a witness in this government enforcement action, and her story, as part of witness testimony, may become public as a result.  Thus, even if Stormy’s private lawsuit fails and even if she loses in arbitration, she may still be able to tell her story in connection with a government enforcement action.  A private arbitration clause between two individuals simply cannot block a government enforcement action under the Supreme Court’s Waffle House ruling.

ISSUE 2: Can Stormy freely and publicly tell her story, such as by giving an interview through the media or writing a book?

This answer to this question depends on whether the hush agreement is enforceable.  The agreement is dripping with one-sidedness in favor of Trump, which could amount to substantive unconscionability and invalidity of the hush agreement, but on the other hand, both parties were apparently represented by counsel, which would tend to temper the harshness of the hush agreement.  Also, there is the larger issue of whether a meeting of the minds occurred with Trump.  Whether the hush agreement is enforceable is the million-dollar question in Stormy’s lawsuit; she wants the agreement declared invalid to tell her story publicly.  The formation and validity of the hush agreement are what I call the core, underlying, merits issues in this dispute.  This ultimate problem is likely dependent on many facts that have not come out yet, and Team Trump is notorious regarding what is reality.  However, there are many sub-issues, and sub-sub-issues, and sub-disputes implicating arbitration law, as explained below.

Also, something that does not appear to be widely reported in the media is that this hush agreement is actually a settlement, and not merely a confidentiality agreement.  A settlement of what?  Paragraph 2.2(a) of the agreement attached to Stormy’s lawsuit states that this agreement is settling alleged “tort claims proximately causing injury to her [i.e., Stormy’s] person.”  Furthermore, as part of the confidentiality provisions in paragraph 4.1(c), Stormy promises to keep confidential “paternity information,” among other things.  A tort of personal injury and paternity information?  These references are not at all clear, but are these tort references in the settlement agreement to a battery or assault, and is the reference to “paternity information” suggesting maybe the possibility of a child?  It is not clear at all, but the specific terminology used in the settlement raises these and similar questions.  In sum, it is important to remember this is not merely an agreement to keep secret their alleged sexual relationship.  It is much more; this is an agreement to settle alleged tort claims involving bodily injury, together with a side promise of confidentiality explicitly covering “paternity information.”  The lawyers appeared to have negotiated an interesting, very particular choice of words to cover this settlement.  The nature of the alleged wrongdoing, whatever it may be – and again, it is unclear – may factor into whether the settlement, which appears very one-sided and harsh to Stormy, is unconscionable.

ISSUE 3: Who decides issue #2?  In other words, who decides whether the hush agreement is enforceable?   Who will be the decisionmaker for issue #2, and why does the identity of this decision-maker matter?

There are at least 3 (and maybe 4) possibilities regarding the decision-maker:

A) The state court where Stormy’s lawsuit has been filed may determine whether the hush agreement is valid.

B) If Trump removes Stormy’s state lawsuit to federal court, the federal court in Los Angeles may be the decision-maker as to whether the hush agreement is valid.

C) An arbitrator may be the decision-maker as to whether the hush agreement is valid.

The fourth possibility is that the parties, working through their attorneys, may resolve on their own whether the hush agreement is valid.  They may just settle on their own and agree that the original hush agreement is valid, or they may agree that the original hush agreement is invalid, which means that Stormy can tell her story.

Team Trump probably wants option C, and Team Stormy probably desires Options A and B.

Recognize that with each of these 3 scenarios, the decision-maker may decide the hush agreement is valid or maybe even invalid. In other words, under each of these 3 scenarios, the core, underlying merits issue will somehow be decided, and it is possible that the decision-maker, whoever he or she may be, finds that the hush agreement is NOT VALID.  If so, Stormy will be able to eventually tell her story freely, and she will no longer be bound by the purported hush agreement.

But why do options A, B, and C matter; why does the identity of the decision-maker matter?  If a court (state or federal) is the decision-maker, which means that a court will decide the validity of the hush agreement, then the fight over the validity of the hush agreement will occur in public court proceedings with broad procedural protections for the parties.  Through the very act of fighting over the enforceability of the hush agreement in open court, Stormy could reveal some or all of her story as part of her testimony, as long as her testimony is relevant to the issues surrounding the making and validity of the hush agreement.  If a court is the decision-maker, there is a possibility (not a guarantee but a possibility – there can still be confidentiality protections in connection with court proceedings) that Stormy’s story may come out just in the process of fighting in court over the enforceability of the hush agreement.  Thus, even if the agreement is binding and valid, fighting in court may indirectly reveal some details of Stormy’s story.  On the other hand, if the arbitrator is the decision-maker, the fight before the arbitrator will generally be private and confidential. (But see below my comments regarding the misunderstandings of “confidentiality” of arbitration proceedings).  Remember, the identity of the decision-maker is not the same issue as whether the hush agreement is valid or not.  But who the decision-maker is, or which dispute resolution method is followed (arbitration vs. litigation in court) may result in some or all of Stormy’s story becoming public, merely as a side-effect of where the fight over enforceability is occurring.   The very act of fighting in court over whether Stormy may tell her story can indirectly result in some of her story being publicly told.

ISSUE 4: Who decides issue #3?  In other words, it is not certain who will be the decision-maker to decide the core merits issue of whether a binding hush agreement exists.  Remember, the decision-maker can be a court or an arbitrator under issue #3 above.  The identity of the decision-maker depends on whether the arbitration clause within the hush agreement is itself valid.  Who determines whether the arbitration clause is valid, or another way of looking at this puzzle is who decides issue #3 above?  The answer is not too clear.  Possibly, the court may decide it is the decision-maker, or the court may decide that the arbitrator is the decision-maker, or the arbitrator can seize power and decide it is the decision-maker, which can force a conflict with a court reviewing whether the arbitrator properly seized power to decide whether it is the decision-maker.

There are really two sub-issues here: is the arbitration clause valid, and who decides whether the arbitration clause is valid.  The answers to these sub-questions will determine who is the ultimate decision-maker under issue #3 above.  If I had to represent a party seeking to invalidate an arbitration clause, which is not an easy task to do, I’d rather roll in the dice in California.  California judges tend to develop or accept some creative, innovative legal arguments to invalidate arbitration clauses.  These sub-issues (is the arbitration clause valid, and who decides whether the arbitration clause is valid) are some of the eye-glazing, mind-numbing questions of arbitration law which I love, and the answer is not too clear.  But here is an overview of my analysis:

Typically, by default under American arbitration law, a court decides whether a valid arbitration agreement exists, unless there is “clear and unmistakable” evidence that the parties agreed to submit this issue (the validity of the arbitration agreement) to an arbitrator.  In other words, a court normally decides whether the arbitration clause within the hush agreement is valid, unless the parties clearly and unmistakably agreed for an arbitrator to rule on the validity of the arbitration clause.  This technical rule was recognized in a 1995 Supreme Court case called First Options v. Kaplan, and it is not entirely clear how this technical rule will apply to the facts here.  In the Trump/Stormy case, there will likely be a debate whether “clear and unmistakable” evidence exists to submit the validity of the arbitration agreement to the arbitrator.  The arbitration rules of ADR Services, Inc. (one of the arbitration providers named in the hush agreement) state that the arbitrator may rule on his or her own jurisdiction, which means that the arbitrator can rule on the validity of the arbitration clause.  Note that there is some debate or conflicting decisions in American arbitration law whether an arbitration clause’s reference to or incorporation of arbitration rules providing for an arbitrator to decide his or her own jurisdiction counts as “clear and unmistakable” evidence under First Options that the parties agreed for the arbitrator to decide the validity of the arbitration agreement.  See Ajamian v. CantorCO2e, L.P., 203 Cal. App. 4th 771, 789 (2012) (noting conflicting opinions).  However, the weight of authority seems to favor the view that incorporation of arbitration rules allowing an arbitrator to rule on jurisdiction counts as clear and unmistakable evidence under First Options.

To further complicate matters, there is a caveat in the arbitration rules referenced in the arbitration clause at issue.  According to the arbitration rules of ADR Services, Inc.. (an arbitration provider selected in the hush agreement), the arbitrator decides the validity of the arbitration clause “unless the issue of arbitrability has been previously determined by the court.”  I expect that Stormy’s legal team will push for the court to rule on the validity of the arbitration clause, while Trump’s legal team will push for the arbitrator to rule on the validity of the arbitration clause.  There is likely to be a fight whether the parties clearly agreed to submit the validity of the arbitration clause to the arbitrator, and there is some tension in case law on this issue.  So, one legal hurdle Stormy’s legal team is likely to face is this First Options issue: did the parties clearly and unmistakably agree for the arbitrator to rule on the validity of the arbitration clause.  It is a little murky at this point whether an arbitrator or court will decide whether the arbitration clause is valid.  The weight of case law and the fact that the parties appeared to have been represented by counsel in the making of the hush agreement probably tip in favor of a court finding clear and unmistakable evidence here under First Options, which means an arbitrator may decide the validity of the arbitration agreement.  Punting the arbitrability issue to the arbitrator is probably an attractive option for the court in this case, but there are some complicated arguments to block this punt.  (As a lifelong Saints fan, I always have to keep the faith; never forget Gleason’s blocked punt.  If you are looking for an inspirational break from this arbitration read, watch the miraculous blocked punt that inspired and rallied an entire city.)

Putting aside the question of whether a court or arbitrator will decide whether the arbitration clause is valid (which in turn impacts who is the decision-maker under issue #3 above), is the arbitration clause valid?  As a result of Supreme Court decisions on arbitration law since the 1980s and continuing to the present day (as an aside, these Supreme Court decisions are very flawed and not true to the original arbitration law enacted by Congress, but that’s a whole other massive can of worms for another day), it has become increasingly difficult, but not impossible, to invalidate arbitration clauses.  Stormy’s legal team slipped up a tiny little bit in this respect with one of their arguments in the civil lawsuit (but they have other arguments).

What are the possible defenses Stormy’s legal team could use to invalidate the arbitration agreement?  Stormy’s legal team claimed in the lawsuit that the entire hush agreement is invalid because of unconscionability.  According to a famous arbitration case from the Supreme Court called Prima Paint, an attack against the entire contract does not invalidate the narrow arbitration clause within the contract.  So, Stormy’s arguments that the entire hush agreement is invalid due to unconscionability could win her a Prima Paint ticket straight to the arbitrator, who will then serve as the decision-maker.  A judge taking a quick look at this case and refusing to dive too deeply into arbitration law can latch on this Prima Paint point and view Stormy as attacking the entire agreement, which means that an arbitrator will hear the fight under Prima Paint.  If Stormy wants to invalidate the arbitration clause, Stormy instead has to attack the arbitration clause in particular, as opposed to the hush agreement as a whole.  In her lawsuit, Stormy does suggest other arguments that may fly and provide a work-around to avoid Prima Paint, such as that the hush agreement was never formed to begin with.  In other words, if you look at the terms of the agreement, it envisions that “DD,” purportedly Trump, would have been a party to this agreement, and he would have knowingly and voluntarily signed the agreement.  Ideally, had this contract been properly executed, Trump would have demonstrated a meeting of the minds and manifested his consent by signing, but, there is no indication he did this.  If Stormy’s legal team makes this argument (that Trump was never aware of the agreement and never consented to it), this argument appears to be an attack against the whole agreement, which should win a ticket straight to the arbitrator under Prima Paint, BUT . . . the Supreme Court suggests this is an open, undecided issue (see footnote 2 of the Supreme Court’s decision in Rent-A-Center v. Jackson and footnote 1 of the Supreme Court’s decision in Buckeye Check Cashing v. Cardegna).   When a party raises a challenge that an agreement was never formed to begin with, there is some tension as to whether this issue of overall contract formation is one for a court or arbitrator to resolve, although the weight of authority seems to be that the court resolves such challenges.  Contrast CT Miami, LLC v. Samsung Elecs. Latinoamerica Miami, Inc., 201 So. 3d 85 (Fla. Dist. Ct. App. 2015) (courts decide issues of contract formation), with Ellis v. JF Enterprises, LLC, 482 S.W.3d 417 (Mo. 2016) (lack of consideration attack against formation of contract is for arbitrator); Primerica Life Ins. Co. v. Brown, 304 F.3d 469 (5th Cir. 2002) (lack of mental capacity attack against formation of contract is for arbitrator).  In sum, if Stormy’s legal team raises a challenge to the very formation of the contract, then, the court may possibly resolve that issue, and some courts have permitted this defense regarding the formation of the contract as a way to avoid the delegation of arbitrability to an arbitrator.

Again, it is difficult to invalidate an arbitration clause.  Some other possible defenses against the enforcement of an arbitration clause recognized by other courts are: abbreviated statutes of limitations or limitations on remedies or prohibitive arbitration fees, but these defenses do not appear to exist here.  Are there other defenses to the enforcement of the arbitration agreement Stormy’s legal team may raise?  Possibly, the very last part of the arbitration clause, which purports to waive the right to court review of an arbitration award, could be viewed as harsh and unconscionable depending on the context.  But here, it looks like the parties were represented by sophisticated counsel, and I doubt a judge would be convinced that this term was overly harsh in light of the circumstances.  Even if such a provision is deemed to be unconscionable, a court is likely to sever off this tiny provision and still find the rest of the arbitration agreement is enforceable and compel arbitration.  Whether parties can EXPAND judicial review of arbitration awards under the FAA was discussed in the Supreme Court’s 2008 decision in Hall Street v. Mattel.  This case may be construed as involving a purported attempt to limit judicial review of arbitration of an arbitration clause, and lower courts are currently split whether the Supreme Court’s Mattel case controls this contraction or limitation issue.

Other possible defenses to the enforcement of the arbitration clause: The entire agreement seems to be one-sided in nature and written in favor of Trump, not Stormy (for example, the liquidated damages clause in the hush agreement is written solely for the benefit of Trump, not Stormy), and remember that attacks on the entire agreement generally win a ticket straight to arbitration under Prima Paint.  But this one-sided nature of the agreement arguably seems to infect the arbitration clause as well.  In the arbitration clause, one sees this one-sided, non-mutual nature; there is some unusual drafting in the arbitration clause arguably suggesting that Trump would be the only possible claimant in arbitration (a parenthetical in the arbitration clause seems to refer to Trump as the claimant, as if Stormy would never be the claimant in arbitration).  In other words, the arbitration clause seems to envision that Trump would be the only party to bring a claim in arbitration, and Stormy would have no occasion to bring such an arbitration proceeding.  Some courts will say that a non-mutual obligation to arbitrate is not binding, although there are conflicting decisions on this issue.  In other words, there is a lack of mutuality in the arbitration clause, and this is a possible contract defense in Stormy’s favor against the enforcement of the arbitration clause. Also, there is a sense of one-sidedness in the contract terms giving “DD,” aka Trump, the exclusive option to choose among the application of Nevada, California, or Arizona law.  But, again, the parties were represented by counsel, and so a court may not find this to be unconscionable, and even if the choice of law provisions are found to be unconscionable, the harsh choice of law clause may simply be severed off, with the court enforcing the rest of the arbitration clause and still compelling arbitration.  Overall, I believe Stormy has a high mountain to climb to invalidate the arbitration clause, although arguing that a contract was never formed may sway some judges and seems to be one of Stormy’s strongest arguments against being compelled to arbitrate.  Also, recognize the dilemma this argument can place on Trump’s legal team: If Trump wants to counter Stormy’s defense that a contract was never formed to begin with, he will be forced into an awkward position to argue that an agreement was formed, perhaps that he knew about the hush agreement all along and consented to it.  But Trump’s admitting to the hush agreement is problematic for concerns about violations of federal campaign laws.  Will Trump and/or the shell company formed by his attorney to pay the hush money argue in response to Stormy’s lawsuit that a valid arbitration agreement exists, in order to keep this fight out of the public’s eye?  The harder that Trump and/or his shell company pushes on this issue, that a valid arbitration agreement exists, the closer we get to an admission or stronger evidence that Trump may have formed an agreement with Stormy, which can implicate violations of federal campaign laws.  Typically, when a party wishes to enforce an arbitration clause, the party will aggressively submit evidence that both parties entered into an agreement containing the arbitration clause and the other side has failed to attack the arbitration clause.  E.g., typically, one side seeking to compel arbitration will submit an affidavit indicating the facts and circumstances surrounding the making of the agreement, like the parties met on this date or time and the other party manifested consent to the agreement in a certain manner.  If Trump’s legal team tries to enforce the arbitration clause, they will be engaged in a very delicate dance.  Can you imagine Trump arguing, yes, I was fully aware of the contract, yes, there was a meeting of the minds, yes, I gave instructions for the money to be paid to Stormy, so despite the lack of a signature, there was still an agreement formed, and thus, the arbitration clause must be enforced?  Such arguments about the formation of a contract are quite common for a typical defendant trying to compel arbitration, but these arguments about formation can get Trump into uncomfortable territory with federal campaign laws.  In the context of an arbitration fight, the party wishing to compel arbitration normally makes strong arguments demonstrating that a contract was formed, but Trump may be hesitant to do so in this case.  Also, technically, the arbitration clause is drafted to cover only two individuals, “DD” and “PP” under the contract, purportedly Trump and Stormy, not the shell company.  By seeking to compel arbitration, Trump will in effect be arguing that the parties entered into a contract that potentially implicates violations of federal campaign laws.  If the shell company seeks to compel arbitration, it will be seeking to compel and rely on arbitration as a non-party to the arbitration clause, which can be acceptable to courts under different theories of state law.  Which state’s laws?  (That itself is subject to some confusion because the hush agreement purports to give “DD” the option to choose among California, Arizona, and Nevada law, and whether this choice of law clause governs the arbitration-related issues is itself subject to conflicting lower court decisions trying to interpret Supreme Court arbitration cases called Volt and Mastrobuono.)  To compel arbitration as a non-party under state law may involve some arguments that Trump and Stormy intended to form an agreement for the benefit of the shell company, which is a non-party to the arbitration clause.  Trump’s legal team will have to engage in a delicate dance when trying to compel arbitration because these arguments and evidence involving the shell company as a non-party could overlap with the core issue of whether Trump agreed to the hush agreement, which can trigger the concerns about violations of federal campaign laws.  Also, as a practical matter, the evidence and issues surrounding the validity and enforcement of the arbitration clause may overlap with the ultimate, underlying, merits issue in this case, whether the hush agreement is valid.

To summarize all of the above, I see 2 strong possibilities in this case:

OPTION A: The court, without wading into this arbitration mess too deeply, will summarily conclude that the arbitrator has jurisdiction to determine his or her own jurisdiction.  As a result, the arbitrator will determine whether a valid arbitration agreement exists, and presuming the arbitrator finds a valid arbitration agreement, the arbitrator will then proceed to determine whether a valid hush agreement exists.  The fact that the agreement was negotiated by counsel, and the fact that a judge probably doesn’t want a media circus which can turn into the trial of the millennium in his or her courtroom, would probably weigh heavily on the judge and lead ultimately to the result of an arbitrator serving as the decision-maker for whether the hush agreement is valid and enforceable.

OPTION B: If Stormy’s legal team can get the court to focus carefully on exceptions to the Supreme Court’s Prima Paint doctrine and the footnote in Buckeye (the possible exception against arbitration if there is a challenge to the very formation of an agreement), or if Stormy can convince the court that the arbitration agreement is invalid for lack of mutuality or unconscionability, then, the court may resolve this issue of whether a valid contract was formed.  This is tough.  It’s not impossible, but tough, and Stormy’s legal team has brought the lawsuit in California, which is arguably the best jurisdiction to bring a challenge to an arbitration clause.

At this point in time, there is likely a looming fight over whether a court or arbitrator is the decision-maker for whether a hush agreement exists, and as mentioned above, this identity of a decision-maker can have an impact.  With a public court as the decision-maker, there is a chance, not a guarantee, that Stormy’s story may come out through the very act of public fighting in court.  If an arbitrator is the decision-maker, then the arbitrator will decide the validity of the hush agreement in proceedings that are generally confidential.

Another point that has been slightly mischaracterized in the media: to say that arbitration is confidential is not 100% accurate or always true.  After an arbitrator issues an award, the Federal Arbitration Act allows the winning party to seek confirmation of the award in court, and the losing party may seek vacatur of the arbitration award in court.  Through this process of court confirmation or court vacatur of an arbitration award pursuant to the FAA, some parts of the “confidential” arbitration proceeding may be revealed in the public court record.  Parties are not obligated to seek court confirmation or vacatur of an arbitrator’s award; both parties may accept an arbitrator’s award and abide by it without seeking court review.  However, the FAA contains provisions regarding court confirmation and vacatur of an arbitrator’s award.  The hush agreement’s arbitration clause purports to block any attempt at judicial review of the arbitrator’s award, and there is confusion in the lower courts whether such an agreement to forego judicial review is valid in the wake of the Supreme Court’s Mattel case.  In other words, can the parties contract out of the FAA and forego its provisions for judicial review, or are the FAA provisions for judicial review non-waivable?  This is not clear, and there is tension in case law whether Mattel controls.  So, even if Stormy must arbitrate her claims, there is still a possibility that after an arbitrator issues an award, there may be attempts in court to vacate or confirm the award, which can have the effect of revealing some or all parts of the underlying “confidential” arbitration proceeding.  Also, remember that it is well-established that an arbitration clause does not block government prosecutions or enforcement actions under the Supreme Court’s Waffle House case, so even if this civil suit and arbitration proceeding do not go in Stormy’s favor, there is still a chance Stormy’s story may become public through a government prosecution regarding possible violations of federal campaign laws.  There is really no such thing as a secret.

What about the temporary restraining order (TRO), the emergency, injunctive relief issued by the arbitrator?  Contrary to the spin of Sarah Huckster-bee Sanders, Trump did not “win” the arbitration.  (The shell company was the only named party as a claimant, not Trump, according to the copy of the TRO published by the Washington Post; also, speaking of this TRO arbitration, if the consigliere Cohen was involved, he will probably face some serious unauthorized practice of law problems in Cali.  Can Cohen be so blind and fawning?  There are multiple ethics concerns surrounding the behavior of the consigliere; he seems to be the textbook example of what not to do as an attorney.)  The relief was just interim relief until an arbitration proceeding could occur to resolve the larger disputes in more detail and render further relief.  California courts have debated the propriety of arbitrators issuing injunctive relief, but this California law has run into problems with preemption under the Federal Arbitration Act (and remember, there is an interesting choice of law clause purporting to allow Trump to choose the governing law from among California, Arizona, and Nevada).  For me, the TRO raises larger questions about arbitration law.  Stormy’s lawyer has publicly said they received no notice of the emergency relief being sought, which appears to be allowed by the arbitration provider’s rules for emergency relief.  This lack of notice has been discussed as unfair in the media, and I agree.  But many appellate courts will say that there are no constitutional due process rights required in arbitration, because arbitration is in theory a private matter supposedly with no government action.  (I tend to disagree for certain situations.)  However, every now and then, I’ll see a court apply due process norms to an arbitration proceeding, and even the Supreme Court in the Concepcion decision appeared to assume that some form of due process applies in arbitration, without explicitly holding.  The TRO reminds me of bigger concerns.

Trump will someday be gone from the White House, hopefully in 2020, if not sooner if he hopefully resigns or is impeached.  This Trump/Stormy circus will melt away over time, but I appreciate how this dispute has helped bring some increased attention to arbitration.  For me, the more pressing concern beyond Trump and Stormy is the widespread use of arbitration in American society, with millions of American workers and consumers covered by arbitration clauses, covering some of the important claims in American society, such as civil rights claims, consumer protection claims, wrongful death claims, assault and battery claims, and wage claims.  We have a system of constitutional checks and balances through our three branches of government, but access to one entire branch, the judiciary, has been increasingly disappearing for many people because of the widespread growth of arbitration clauses.  When there is mutual consent and fair procedures, arbitration can be a powerful, efficient system supporting our courts, but stronger parties may take advantage of weaker parties through the drafting of harsh arbitration clauses with one-sided, harsh terms (like a claimant only has 30 days to bring a claim in a location thousands of miles away and pursuant to cost-prohibitive fees and with only limited remedies available).  I hope the Trump/Stormy dispute will cause people to think about the propriety of arbitration, concerns about confidentiality and the lack of due process, and whether certain disputes should or should not be arbitrated.   Arbitration can be great when used properly and with mutual consent, but some stronger parties try to hijack arbitration and twist it in a way to suppress claims.

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