A AAA arbitration over a credit card billing dispute between a consumer and a bank concluded recently. The consumer "won", in the sense that he obtained equitable relief, but lost, in the sense that he failed to recover damages.

A key question of fact was whether the bank made billing statements available online. In his award, the arbitrator stated "[consumer] presented no evidence that his Ink account statements were not available ... [bank] presented evidence that such statements were available on the [website]. So, there was no showing of failure on the part of [bank] to provide access to statements".

However, the bank presented no such evidence at the hearing. They called a single witness, who had no personal knowledge relating to online statement access, and even testified quite plainly under questioning from the arbitrator himself that the bank had no evidence, e.g.:

ARBITRATOR: [M]y question to [witness] is, does [bank] have any way to show whether or not the statements were actually posted to one of those username accounts that could be accessed online at the time?

WITNESS: No. There wouldn't be anything in [the evidentiary record] that would reflect that.

ARBITRATOR: Okay, all right. When you say that, are you suggesting that there could be evidence somewhere else?

WITNESS: Not that I'm aware of, no.

ARBITRATOR: Well, how do you deal with the allegation that [consumer] is making that he would go to the account ... and not see any statements? Can you prove or disprove that?

WITNESS: I cannot prove or disprove that, no.

Is this grounds to vacate the award?