ThePopTort

Lawsuit’s Hard Knock Life Gets a Break

Hi.  My name is Annie Lawsuit and let me tell you, it’s not easy being me.  Politicians constantly insult me.  The media constantly misrepresent me.  I’ve had Presidents of the United States attack me - by name!  My ability to exist at all is threatened every day.  

But today is a good day.  Today, my very existence was publicly validated in ways that I could never have imagined.  Let me explain.

If you look on the op ed page of the New York Times, you will find a column called, “Learning From Litigation” (in the very same spot they gave Angelina Jolie last week, no less.)  Like I’ve been trying to tell everybody all these years, I am something you can learn from!

The author of this article said some really nice things about me and I couldn’t be more proud.  Here’s some of what she wrote:

My study … shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.…

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Moreover, litigation discovery can unearth useful details about safety and quality concerns. Analyses of claim trends can reveal problematic procedures and departments, and closed litigation files can serve as rich teaching tools. …

Moreover, because lawsuits help to identify incidents and details of medical error, limitations on lawsuits may actually impede patient safety efforts.

Medical-malpractice lawsuits do not have the harmful effects on patient safety that they are imagined to have — and, in fact, they can do some good.

That's not all. We learned late yesterday that Charles Schwab backtracked on its “requirement that clients waive their right to bring class-action lawsuits.”  (See our earlier coverage.)

Schwab's right to stop clients from bringing coordinated court actions was challenged last year by the Financial Industry Regulatory Authority, the securities industry’s principal regulator. A FINRA hearing panel in February ruled that Schwab's policy does violate FINRA rules but was consistent with federal law and recent Supreme Court interpretations of the Federal Arbitration Act.…

Consumer advocates, along with class-action lawyers, have blasted Schwab's efforts to limit the lawsuits, saying many ordinary investors cannot afford to pay on their own for the cost of arbitration hearings.…

Public Citizen, a consumer watchdog group that has been circulating a petition asking Schwab to rescind the class-action ban, congratulated the company for its "responsible" decision. It said many of its 19,000 supporters who signed the petition also are Schwab customers who spoke directly to the firm.

See, for me, each of these forced arbitration clauses with class action bans is like the death penalty, so you can see why I’m so happy. 

And speaking of arbitration, we found out that on Wednesday, a federal judge in the Northern District of California (Michelle Lou v. MA Laboratories et al.) ruled that an arbitration clause in an employment contract was “procedurally oppressive and unconscionable,” that “the procedural unfairness was severe and the substantive one-sidedness [because the employer was allowed to go to court while the employee wasn’t] was heavy-handed” and therefore the forced arbitration clause was unenforceable!

It’s been a hard knock life for 35 years.  But not today.

For Law Day, Honoring Those Fighting Forced Arbitration

It’s Law Day, everyone! Actually, it’s May Day. Law Day was a fairly recent Cold War-era creation by a very paranoid United States who thought the whole Maypole/flower basket thing had been taken over by communists. But whatever. We’ll take it.

For Law Day, we would like to honor those who actually respect our legal system and want to free it from the clutches of corporate wrongdoers.  And in fact, we found some yesterday. In fact, we found 37 members of the U.S. House and Senate, led by Senator Al Franken, who yesterday, wrote a powerful letter to new Securities and Exchange Commission Chair Mary Jo White saying:

"We are deeply concerned that the Commission's failure to respond to the dangers posed by widespread forced arbitration will weaken existing investor protections.… We urge the Commission to act quickly to exercise its authority...to prevent this practice and protect investor rights."

The lawmakers are urging “U.S. securities regulators to prohibit Wall Street brokers from forcing customers to sign away their legal right to sue” via forced arbitration clauses with class action bans. (See more about the problems with forced arbitration and class action bans here.)

Notes Reuters, “Brokerages typically require customers to sign pre-dispute arbitration agreements when opening their accounts. Under such agreements, disputes between a brokerage and a customer go to arbitration; customers are prohibited from suing in court.”  Say the lawmakers: 

[T]he SEC should use the authority given to the agency under the Dodd-Frank financial law to reform arbitration clauses.

“To our disappointment, in the almost three years since the Dodd-Frank Act's enactment, the commission has largely disregarded this important mandate.… The time is ripe for the commission to act under [Dodd-Frank] to protect the investing public and prevent further abuse of forced arbitration contracts.”

The legislators also asked the SEC to monitor how many brokers are including mandatory arbitration agreements and class action waivers in their client contracts.

Reuters also notes,

The issue came into the spotlight recently after Charles Schwab Corp expanded the mandatory arbitration clauses in its customer contracts to include class action waivers.

The Financial Industry Regulatory Authority tried to fight the Schwab move by filing a disciplinary action, saying the class action waiver violated its rules.

But a hearing panel upheld Schwab's measure in February.

FINRA is appealing the ruling to the National Adjudicatory Council, a FINRA appellate body that reviews disciplinary decisions.

In the letter to White, the lawmakers said they were alarmed by the Schwab case and said it should be a catalyst for the SEC to act.…

Earlier this month, one SEC commissioner, Luis Aguilar, called for the SEC to take steps to scale back or limit the use of mandatory arbitration agreements.

Aguilar, who in his speech said “allowing investors to take their legal claims to court would 'enhance investor protection and add more teeth to our federal securities laws,'” isn’t the only regulatory official concerned about this arbitration practice. About 17 members of the North American Securities Administrators Association earlier “conducted meetings with more than 40 lawmakers, delivering the same message: That investors should be allowed to go to court to settle a grievance against their broker.”

Meanwhile, Public Citizen has begun a petition drive aimed specifically at Charles Schwab, asking people to “Stand up to Chuck” and "to remove from its terms for investors the forced arbitration clause and the ban on joining together in class actions. Schwab should honor its customers’ rights and end its shameful fight against the Financial Industry Regulatory Authority."

If you do nothing else to honor Law Day today, sign Public Citizen's petition! And while you are at it, don't forget to thank Senator Franken, whose record opposing forced arbitration has been truly inspiring!

Forced Arbitration and the Supreme Court’s Stealth Annihilation of Civil Rights

I do hate taking any focus off Prop 8 and DOMA today. To quote that famous legal scholar George Clooney, “At some point in our lifetime, gay marriage won't be an issue, and everyone who stood against this civil right will look as outdated as George Wallace standing on the school steps keeping James Hood from entering the University of Alabama because he was black.” (“Outdated” being a polite euphemism here.)

However, also this week, there was a Supreme Court argument to which few paid any attention. The case was Oxford Health Plans LLC v. Sutter.  We thought it worth mentioning for a couple of reasons.  First, it is one in a series of cases constituting the Supreme Court’s long march to eradicate class actions, and for that matter, to eradicate access to the civil courts.  (See more in the Center for Justice & Democracy’s new FAQ, “Vanishing Rights and Remedies Under Forced Arbitration.")

Second, because of the 2011, 5-4 decision, AT&T Mobility LLC. v. Concepcion, which upheld contracts with forced arbitration clauses and class action bans, Oxford involves what may be one of the last class action lawsuits by doctors against a managed care company – a device that physicians have made widespread and somewhat hypocritical use of.  But likely, not for long.  Maybe now organized medicine will understand what it means to have one’s legal rights stripped away.    

Here’s how Daniel Fisher at Forbes explained the case:

The Oxford case involves a dispute between doctors and the insurance company over payments. …

In Oxford, the judges must decide whether an arbitrator was out of line by allowing a class action to proceed on behalf of some 20,000 doctors even though there was no provision for class actions in the arbitration agreement between doctors and Oxford. The court seemingly decided this question three years ago in Stolt-Nielsen vs. Animal Feeds, when it held class arbitration couldn’t be forced on parties if they didn’t agree to it. The decision, by Justice Samuel Alito, left open a very slim question over whether under different circumstances an arbitrator could determine that the parties might have agreed to class actions although not in the explicit terms of the agreement.

Court observers believe Oxford will win this.  Of course, the impact of the decision will extend far beyond these 20,000 doctors. Fisher again: “One of the biggest impacts may come in employment law, where class-action attorneys are pressing lawsuits on behalf of thousands and even millions of employees over wages, hours, discrimination and working conditions.”

So, you know those civil rights that Mr. Clooney was talking about?  Just watch.

UPDATE: Wow, as if by clockwork, the Court today threw out yet another class action in a 5 to 4 Scalia-written decision, drawing strong dissents. 

The Feres Doctrine’s Military Injustice

The nation, it seems, has suddenly woken up to the problem of military sexual assaults against women. Today, on its front page, the New York Times ran part two of a series about the disproportionate trauma faced by female military vets, often exasperated by sexual assaults that occured while in the military.  Departing  Pentagon chief Leon E. Panetta estimated such assaults could number 19,000 a year.  

Today, the Times wrote about the “common pathway to homelessness for women - [that is,] military sexual trauma, or M.S.T., from assaults or harassment during their service, which can lead to post-traumatic stress disorder.”  And nothing illustrated this crisis better than the Oscar-nominated, award-winning documentary, The Invisible War.  If you haven’t see this film, there are numerous ways to download, watch or screen this extraordinary film today.  And then take action here.

But there is one more thing we must do.  We must change the law, so that sexual assault survivors are no longer prohibited from holding the government legally accountable for its role is allowing this crisis to continue.

Rachel Natelson, Legal Director of Service Women’s Action Network, has a piece in Time magazine called "The Unfairness of the Feres Doctrine," a doctrine that we’ve covered often at ThePopTort.  Basically, the “Feres Doctrine” is a 60-year-old policy that bars U.S. military personnel from suing the government for personal injuries suffered while they are in the armed forces. Even, it turns out, when an epidemic of sexual assaults exists. Writes Nelson:

[F]or Ariana Klay, and other subjects of the Oscar-nominated documentary The Invisible War, however, the wounds of battle are unlikely to fade with the closing credits.

In dismissing Klay v Panetta, a civil lawsuit that Klay brought against the Pentagon for failing to protect her and other service members from sexual violence, U.S. District Judge Amy Berman Jackson has perpetuated a baffling tradition of depriving military personnel of basic civil rights.

Like countless others injured due to the negligence or misconduct of their brothers-in-arms, Klay and her co-plaintiffs have been denied a remedy for the wrongs they suffered, simply because they were harmed during their time in uniform.

Congress can fix this. Thanks to the leadership of Senator Al Franken (D-MN), Congress already fixed a related problem by prohibiting military contractors from covering sexual assaults in its forced arbitration clauses. 

They can do this.  

Arbitration -- Instagram's Other Fine Print Offense

If you went online at all yesterday, you probably saw the social media outrage over photo-sharing giant Instagram’s new Terms of Use. 

Instagram users were furious at the news that their personal photos could be used in advertisements without notification or financial compensation.  So furious, in fact, that now Instagram is backtracking, claiming that they’ll remove portions of their Terms of Use that would allow them to sell your photos.  We’ll see if they really do.  

But you may not have noticed another change that Instagram made, much more quietly - they added a forced arbitration clause to the Terms of Use, which will go into effect January 16, 2013.  That means if you have any kind of dispute with Instagram, you would have no right to a jury trial and the company would control the whole process. What’s more, should Instagram rip you off as well as large numbers of people all at once, you would have no right to band together with them in a class action.    

They can do this because of a horrible 2011 Supreme Court decision called Concepcion v AT&T.  Since that decision, corporations have been preventing class actions lawsuits via mandatory arbitration clauses left and right.  These clauses are showing up in everything from nursing home contracts to Starbucks gift cards.  According to our friend Mike Rustad, who is the Thomas F. Lambert Jr. Professor of Law & Co-Director Intellectual Property Law Concentration at Suffolk University Law School, Instagram is one of the first big social media sites to insert this clause in its user agreements:

 

“That [arbitration] provision is not included in terms of service for other leading social media companies like Twitter, Google, YouTube, or even Facebook itself, and it immunizes Instagram from many forms of legal liability, said Michael Rustad, a professor at Suffolk University Law School…

“The clause effectively cripples users who want to legally challenge the company because lawyers will not likely represent an individual plaintiff, Rustad argued.

“‘No lawyers will take these cases,’ Rustad said.  “In consumer arbitration cases, everything is stacked against the consumer.  It’s a pretense, it’s a legal fiction, that there are remedies.””

 

Of the 157 social media services Rustad has studied only 10 contain provisions that prevent class actions.  But currently Facebook (who now owns Instagram) is battling its own class action lawsuit so Instagram’s forced arbitration/anti-class action clause may just be the beginning.

The only good news, if you can call it that, is that Instagram’s arbitration clause includes an opt-out provision so if you’re reading this now, do the following before the February 15, 2013 deadline:

Send a letter to:

Instagram, LLC
ATTN: Arbitration Opt-out
1601 Willow Rd.
Menlo Park, CA 94025

Include:

• your name
• your residence address
• the email you use for your Instagram account, and
• a clear statement that you want to opt out of the arbitration agreement.

And, if you choose to delete your Instagram account like some of us at CJ&D, here are a few Instagram alternatives to consider.  

The Newest Senior Citizen Entitlement: Fraud, Abuse and Neglect Without Recourse

Robert Wagner is an 82-year-old former movie star (really more of a TV star and don't let that 43-year-old photo fool you), who lately is probably better known to the non-elderly as 1. the guy who argued with Natalie Wood before her body was found off Catalina Island, and 2. star of reverse mortgage commercials.  Not that we have anything personally against “RJ” as his adoring former leading ladies lovingly called him at a recent "92nd Street Y" event (in New York City) called, “Pioneer Women of Television.” Doesn’t he know that he’s a spokesperson for an industry that has been ruining the lives of his own age group? 

At least that’s according to today’s New York Times front-page story about how reverse mortgage loans, “which allow homeowners 62 and older to borrow money against the value of their homes and not pay it back until they move out or die” and “are supposed to help seniors stay in their homes are in many cases pushing them out.” The Times found rampant abuse against the elderly by many in the reverse mortgage industry:

Some lenders are aggressively pitching loans to seniors who cannot afford the fees associated with them, not to mention the property taxes and maintenance. Others are wooing seniors with promises that the loans are free money that can be used to finance long-coveted cruises, without clearly explaining the risks. Some widows are facing eviction after they say they were pressured to keep their name off the deed without being told that they could be left facing foreclosure after their husbands died.

Now, as the vast baby boomer generation heads for retirement and more seniors grapple with dwindling savings, the newly minted Consumer Financial Protection Bureau is working on new rules that could mean better disclosure for consumers and stricter supervision of lenders. More than 775,000 of such loans are outstanding, according to the federal government. …

Mark S. Diamond, a former subprime mortgage broker in Chicago, who has been sued for fraud by the Federal Trade Commission and the Illinois attorney general, faces a federal lawsuit filed in June by seniors who claim that he sold them reverse mortgages and either pocketed their loan amounts or promised to put the proceeds toward home repairs that never materialized. A lawyer for Mr. Diamond did not return calls for comment. Some solicitations reviewed by the Consumer Financial Protection Bureau present reverse mortgages as “free money” or mistakenly tell seniors that they could never lose their home. One Maryland reverse mortgage lender tells seniors that they can put the proceeds toward a vacation: “Just because you’re retired doesn’t mean you don’t need a vacation every now and then.” Last year, the Massachusetts Commissioner of Banks issued cease-and-desist orders to a handful of reverse mortgage firms for operating without a license. In its advertising, one of those mortgage brokers falsely promised seniors “you won’t lose your home.”

In addition to the Illinois AG, Minnesota AG Lori Swanson, who has been a star on the financial crime and arbitration abuse fronts (see e.g., here) is “working on reforming the reverse mortgage market.”

But that’s not the only problem for seniors these days. It’s not enough that many healthy seniors are losing their homes and sick seniors often must live out their remaining days in nursing homes. Now, wealthy trade associations (like the American Health Care Association – the largest trade association representing the interests of many nursing homes) are targeting them too, hiring insurance consulting firms to issue reports trying to convince lawmakers to strip away the legal rights of families when nursing homes abuse and/or neglect their loved ones. See this response from Consumer Voice to an outrageously misleading report issued earlier this year from Aon Risk Solutions.  See more here and here.  In an earlier post, we discussed the enormous pitfalls posed by unethical pre-dispute (and pre-treatment) mandatory binding arbitration clauses in nursing home contacts. 

No doubt, "RJ" has enough money and people around him to protect him from fraud, abuse and neglect, which jeopardizes the “non-celebrity” elderly.  So if we can’t get his attention, how about those 75 million baby boomers who are on the verge of retirement (many of whom are caring for elderly parents as we speak)? 

Arbitration and Other Nursing Home Rhymes

I was reading today this Washington Post story about mandatory arbitration agreements in nursing home contracts. Seemed like a good piece.  Then I came upon a quote, which I read at least three times before finally accepting the fact that the Post actually kept it in the story. Here it is: 

Although consumers usually don’t realize it, there’s a simple way to avoid being forced into arbitration, say experts: Don’t sign the arbitration agreement. What happens if you don’t sign? Nothing, [Greg Crist, a spokesman for the American Health Care Association] says. “It’s not a condition of admission to the facility,” he says.

The article, or actually the column written by Michelle Andrews as part of a “collaboration between The Post and Kaiser Health News,” concludes: “Better yet, experts agree, is not to sign in the first place.”

On what planet? These folks have obviously never had to deal with the misfortune of trying to find a decent nursing home for a family member.

First of all, you cannot “not sign” what a nursing home is asking you to sign. Nursing homes aren’t things families leisurely shop around for like condo’s or summer vacation rentals. Usually, families are dealing with a situation where a family member is being thrown out of hospital after suffering some terrible illness or injury.  If the family is lucky, they’ll quickly find a facility with a decent reputation, not too many state violations, and hopefully accepts Medicaid. (Yes, Bill Clinton was correct in his DNC convention speech:  "Nearly two-thirds of Medicaid is spent on nursing home care for Medicare seniors who are eligible for Medicaid.") If you refuse to submit to a nursing home's terms, good luck getting in.

Second, the article gives the impression that if an arbitration clause is buried in the admission papers (which you’ve unwittingly signed) and then some horrifying thing happens to your loved one, you can sue the nursing home and the judge will find the arbitration clause “unconscionable” and throw it out. Again, on what planet?  Even the U.S. Supreme Court has spoken on this topic and how do I put it: They don’t care!  In fact, a few years ago, the Court ruled that it was OK for the arbitrators themselves to decide if their own unconscionable system was fair. 

The article does correctly point out at least some of the problems families face by being forced to sign unethical pre-dispute (and pre-treatment) mandatory binding arbitration clauses. Writes Ms. Andrews,

Agreeing to arbitrate is generally not in families’ best interests, say consumer advocates. For one thing, it can be pricey. In addition to hiring a lawyer, the patient or family generally has to pay its share of the arbitrator’s fee, which may come to hundreds of dollars an hour, says Paul Bland, a senior attorney at Public Justice, a public interest law firm based in Washington. “In court, you don’t have to pay the judge,” he says. “Our taxes pay for that.”

Court proceedings are also conducted in a public courtroom and leave a detailed public record that can inform industry practice and help develop case law, say experts. Not so with arbitration hearings, which are conducted in private and whose proceedings and materials are often protected by confidentiality rules.

The amount awarded — if any — may also be less if an arbitrator hears the case than it would be if a case went to trial, say experts.

There are many additional severe problems with mandatory arbitration clauses, which you can find here, here and specifically with regard to nursing homes, here.  You can learn even more by watching the HBO documentary film, Hot Coffee (now available on DVD, Netflix and iTunes!) 

Finally, a note for Greg Crist.  Mr. Crist, you appear to be a fairly young man.  Probably haven’t had to face these monumental family issues yet. I’m sure you’ll figure it out someday.

Hot Coffee Flap

CONFIDENTIAL MEMO*

To: U.S. Chamber of Commerce Institute for Legal Reform Members

From: New PR Person in Charge of Responding to “Hot Coffee”

Date: May 21, 2012

Re: Please don’t fire me

I realize a lot was expected of me. I am fully aware that each of my seven predecessors were unceremoniously sacked for failing miserably in their one task – trying to destroy the award-winning documentary film, Hot Coffee. 

Now without making any excuses, I do think we should ask ourselves how this happened. I realize that we’re terrible at making films that anyone wants to watch. But we’re supposed to own the narrative on “tort reform.” That’s why we produce expensive movie ads, make our own commercials and create our own newspapers.  No one’s supposed to hear the other side of this, let alone millions of HBO/DVD viewers! Plus the film just won an award from that pinko Hollywood outfit, the Emmy’s. That won’t help.

Problem is, trying to damage the film now – over a year since its Sundance premiere and after much acclaim in the meantime - is probably insane. But when ATRA’s and ALEC’s Victor Schwartz came begging, still miffed that the film used sound bites of things he actually said, I thought well, we still have boatloads of cash. Let’s see how far we can get once again re-arguing (this time in webisodes) McDonald’s case  – a case that the jury didn’t believe, a case that the judge and jury both rejected, and which led the judge, in refusing to grant a new trial in the case, to call McDonald's behavior “callous. We thought if we upped the star power by having Victor’s corporate law partner join in, and then promoted it all with some Google and Facebook ads … well, what’s the harm? 

Unfortunately, some people have now brought to my attention a few “inconvenient” facts that … again – I beg you, please don’t make me #8.

First, you know how the whole last part of our little project (that would be webisode 6) accuses Hot Coffee of misleading viewers on how Jamie Leigh Jones got her case before a jury, saying that Sen. Al Franken’s efforts had nothing to do with it? What, did we have pre-schoolers doing the research on this? Because I just found a March 23, 2010 article from the Minneapolis Star Tribune, where KBR itself essentially confirms exactly what Hot Coffee says, specifically: 

In a victory for Minnesota Democrat Al Franken, military contractor KBR has decided to drop a Supreme Court appeal in the case of a former company clerk who alleges she was raped by co-workers in Iraq. KBR's decision represents the first significant legal fallout from the "Franken amendment," which protects defense workers from being forced to accept arbitration after suffering sexual assault, battery or discrimination. The measure became the subject of a testy Senate battle that reverberated in legal circles and in popular culture as the subject of a Jon Stewart rant on cable TV's "The Daily Show."

KBR, which has sought to handle Jamie Leigh Jones' claim out of court, acknowledged Tuesday that its appeal might violate the amendment. …

Although the incident happened five years ago, when Jones was 20, the company could still be covered by the Franken amendment, which was intended to bar defense contracts to companies that enforce new or existing arbitration agreements in cases such as Jones'.

And then there’s the part where we say that overall damages caps (including compensation limits for economic losses) are so rare that focusing on Nebraska’s law (as applied in the Gourley’s birth injury case) was “misleading” and an example of using “slight of hand.” How was I supposed to know that just as our ads were hitting Facebook and Google, a jury verdict was coming down in a whole other state – Virginia – which also has this kind of cap? And now, just like in the Gourley’s case, this verdict is gonna be drastically cut, too!  Economic damages! Hey, I’m not omniscient. I can’t control the timing on these things.

The Virginia case also involved a severe birth injury due to negligence by doctors, where the jury decided the child needed $9 million for a lifetime of care – but due to the cap, she’ll get a fraction of this. Now, I’m not complaining. Believe me, you won’t ever find us lobbying to repeal overall caps no matter how “extreme” we say they are. So here’s what happened in Virginia: 

… Marissa [Simpson, Marsha's daughter] was born with dangerously low blood pressure, and with a loss of one-third to one-half of her normal blood amount. Additionally, her kidneys had been destroyed, and she suffered a brain injury from lack of oxygen. To date, Marissa has undergone two kidney transplants, and she has cerebral palsy. The attorney said the decision to induce was negligent, and once complications arose, doctors should have acted more quickly.

The family has spent more than $1.75 million to provide care for Marissa. Expert witnesses testified they could spend up to $8 million in the future.

[Attorney] Krasnow said he anticipates the defense will file a motion to ask Judge William Broadhurst to follow Virginia law, which caps the damages recoverable at $1.4 million each for Marsha and Marissa Simpson.

Let’s just hope this case doesn’t make it into the new edition of the Hot Coffee DVD extras. And by the way, when we say the 7th Amendment doesn’t mean juries get to decide damages in civil cases, just don’t tell the guy who came up with the constitutional arguments that we use for repeal of the health care law.  He doesn’t agree with us.

I do want to emphasize that when we complain about using “subjective opinions to reach forgone conclusions,” pointing out that “flapjacks have two sides,” we are limiting our comments exclusively to Hot Coffee. I’ve heard some complaints that these words could actually apply to us, since we clearly only use “subjective opinions to reach forgone conclusions.” Please do not worry. By no means do we have any intent of ever engaging in flap jacking.

So, we good? 

[*Via the ancient art of satire]

Mandatory Binding Arbitration's Super Critic

I’m sure if Lex Luthor thought about it, in his quest for world domination he would have insisted on mandatory binding arbitration to resolve all of his disputes. Only the mind of a power-mad, evil scientist could have come up with a system like this, where consumers and workers are forced to give up their legal rights to sue in court against misbehaving corporations who harm them. (See the Center for Justice & Democracy’s new fact sheet for more background.) In fact, back in the late 1990s, Superman himself did battle against this evil device!  (OK, not really Superman, but close.)

You may recall that in May 1995, the actor who famously played Superman, Christopher Reeve, was rendered quadriplegic after falling from a horse in a riding accident.  Sadly, he has since passed away.  But in 1998, when the Alabama law firm Beasley Allen challenged the state's mandatory binding arbitration rule on constitutional grounds, Christopher Reeve filed an amicus brief in support of Beasley's case.  He wrote,

One of the hardest things I have had to do since my disability is to deal with insurance companies.  I found them to be callous and to try to set up any roadblocks they can to keep from paying legitimate claims. I am totally against binding, mandatory arbitration in insurance policies.

Unfortunately, the scourge of mandatory binding arbitration continues to this day and while we no longer have the Man of Steel to come to our aid, we do have Amalia D. Kessler, professor of law and legal history at Stanford University.  Kessler has a butt-kicking op ed in today’s New York Times called “Stuck in Arbitration," writing:

[A] growing number of consumers and job seekers discover, when something does go wrong, that they have unknowingly agreed to waive their right to file a lawsuit. Instead, they must submit to arbitration.

For some, arbitration proves too costly to pursue. Among those who can afford the fees, many learn they cannot enforce their legal rights because arbitration decisions do not need to be based on the law; arbitrators have their own procedures, and some studies have found that they are systematically biased in favor of the companies that hire them. Lawyers are often unwilling to represent arbitration complainants because of award caps in the agreements. And increasingly, these accords bar class-wide arbitrations. Because arbitration decisions are typically not disclosed and not subject to appeal, consumers and workers are left without recourse and must bear the cost of unfair, deceptive and harmful practices.

What’s more, she writes, “It wasn’t always this way.”

While the [1925 Federal Arbitration Act] was initially envisioned as applying primarily to disputes between commercial equals, since the 1980s, the United States Supreme Court has interpreted it in ways that have facilitated corporate America’s efforts to force consumers and employees into arbitration. This trend has accelerated in the last few years.

She concludes,

But as deployed by corporations against many thousands of individual consumers and employees, it bears a troubling likeness to the 19th-century concept of conciliation as a practice suited only for a subservient underclass.

It is long past time for Congress to intervene. The Arbitration Fairness Act is no panacea, but it’s a start.

One can only hope.  For more information, go to Fair Arbitration Now.

Minnesotans Leading the Anti-Arbitration Charge

Shout out today to the state of Minnesota, whose officials (OK maybe not every official) are taking the lead in trying to wipe out the terribly unfair process known as mandatory binding arbitration.

In 2009, we covered the “consumer protection lawsuit by Minnesota Attorney General Lori Swanson” which had “resulted in arbitration behemoth, the National Arbitration Forum (NAF), pulling out of ‘the business of arbitrating credit card debts and other consumer collection disputes nationwide’”

So we were delighted to see AG Swanson as a lead witness in yesterday’s U.S. Senate Judiciary Committee hearing called “Arbitration: Is It Fair When Forced?”, presided over by U.S. Senator Al Franken (D-MN), probably the Senate’s single best advocate for consumers on this issue. Here’s the web cast.

As the Minneapolis Star-Tribune reported,

Minnesota Attorney General Lori Swanson criticized the mandatory arbitration industry Thursday in testimony before a U.S. Senate panel.

The hearing was held by Sen. Al Franken, D-Minn., a critic of mandatory arbitration and author of legislation limiting its use in workplace disputes involving defense industry workers. Also present was Sen. Amy Klobuchar, D-Minn.

Swanson, who has testified in Congress before against mandatory arbitration, cited her 2009 suit against the Minnesota-based National Arbitration Forum (NAF), the nation’s largest consumer arbitration company. 

The suit alleged pervasive bias against consumers by a private dispute resolution company that is “in essence an arm of the collection industry.”…

According to Swanson, millions of people give up their legal rights because of "fine print" language in consumer contracts.

We wish this was all it took to protect consumers from these clauses - smart state AG’s - but unfortunately, we have a U.S. Supreme Court determined to step in the way.  In fact, this week the court heard yet another case involving anti-consumer arbitration ("The Supreme Court justices asked the question half a dozen ways: When Congress writes legislation that says, 'You have a right to sue,' why doesn’t that mean that consumers have a right to file a lawsuit in court?).  The case prompted this editorial today from the New York Times, which explains the case pretty well:

The question of how far companies can go in taking away their customers’ right to sue returned to the Supreme Court this week. The case involves a subprime credit card company called CompuCredit, which was sued by three customers in federal court for deceptive practices under the 1996 Credit Repair Organizations Act.

The company argued that they were barred from bringing lawsuits because their contract allowed them to enforce their rights only through arbitration, which prevents them from having their dispute resolved by an impartial judge and jury in a public court.

The act was passed to shield people from companies making bogus promises of credit repair. It says: “You have a right to sue a credit repair organization that violates” the act and a “waiver by any consumer of any protection” shall be “treated as void” and “may not be enforced by any federal or state court or any other person.” Despite that clear language, CompuCredit’s lawyer insisted that the wording is not “sufficiently explicit” to create a right to sue if a contract contains an arbitration clause.…

In AT&T Mobility v. Concepcion in the spring, the court’s conservative majority upheld an arbitration clause in a cellphone contract that forced consumers to waive the right to take part in a class action. The case drew attention to the wide corporate effort to have a privatized system of justice barring people from their day in court. In this case, the justices should rule that a statute explicitly creating a right to sue trumps a contract allowing only arbitration.

Yes, you would think.