ThePopTort

Sending Good Thoughts to Jamie Leigh Jones

When Margaret Mead famously said “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has,” I’m sure even she couldn’t have envisioned a young woman named Jamie Leigh Jones.  As a 20-year-old, Jamie experienced some of the worst horrors one could imagine but rather than cower in the corner feeling helpless and defeated, she has used that experience to change the world. 

After a 6-year battle, Jamie’s lawsuit finally has begun (with opening statements today) against military contractor KBR, a former Halliburton subsidiary.  As we’ve noted here before, Jamie filed suit for a 2005 gang-rape and other horrendous acts committed against her by the company and some of its employees while she was working in Iraq. The company’s response was to try to keep her out of court entirely, claiming:

... Jones signed an agreement that required all of her work-related claims to be resolved through private arbitration.

The Jones suit has long been viewed as a test case regarding the reach of workplace arbitration clauses.  ...

The Fifth Circuit in 2009 ruled that Jones can pursue her case in court, concluding that her rape allegations “do not touch matters related to her employment.” ...

“Jamie has waited six years to have her day in court and she’s happy to finally talk to a jury,” her attorney, Lannie Kelly, told AP.

By never giving up, Jamie's case has not only advanced the important cause of employees' legal rights, but has also

[H]elped put an intense spotlight on the behavior of military contractors overseas, as numerous other women accused KBR employees of sexual assault. Jones’ story eventually led to congressional hearings. ...

Since the organization was established, 42 alleged sexual assault or rape victims associated with or employed by KBR have come forward ...

Kelly also is representing a former KBR employee, Anna Mayo, a 27-year old Austin woman who says she was beaten, choked unconscious and raped at a KBR barrack in Balad, Iraq, last November.

But Jamie has achieved even more. “Due in part to Jones’ case, federal lawmakers in 2009 approved a measure prohibiting contractors and subcontractors that receive $1 million in funds from the Department of Defense from requiring employees to resolve sexual assault allegations and other claims through arbitration.”  

And believe it or not, it doesn’t stop there.  Jamie has also set up a foundation “dedicated to helping United States citizens and legal residents who are victims of crime while working abroad for government contractors and subcontractors.”

Jamie’s courageous story is featured in the new documentary Hot Coffee, which airs on HBO June 27. The film, which we’ve been covering here at ThePopTort, has been getting wonderful recognition, most recently winning the Grand Jury prize at the Seattle International Film Festival. 

You can see a glimpse of Jamie in the trailer, below.  All good thoughts going out to her today.

Concepcion v. AT&T – Here’s the Good News!

There’s been a lot of analysis of the disastrous impact of the Supreme Court’s 5 to 4 Concepcion v. AT&T decision yesterday (here is the 39-page opinion and here is Scotusblog), which allows corporations to ban class actions via what are now industry-wide, anti-consumer mandatory arbitration clauses.  The Court ruled that the Federal Arbitration Act barred states from protecting their own residents from these horrendous arbitration clauses.  Andrew Cohen at The Atlantic put it this way:

Suffice it to say that the Court's decision completely defies the very federalism principles which are so often articulated by the very conservative members who agreed Wednesday to strike down a state's effort to level the consumer playing field for millions of its residents. This is as big a pro-business, pro-corporate ruling as we've ever seen from the Roberts' Court -- and it will take explicit Congressional action to overturn it. 

That is just way too depressing, so we decided to search around for some good news in all of this.  First, we found a quote from corporate lawyer Sonya Winner at Covington & Burling, the law firm which used to funnel tobacco money into the "tort reform" movement and now houses the similarly anti-civil justice spokesperson, partner Phil Howard.  Yes, she says,

She spent the morning thinking about new strategies, including bringing arbitration back into matters where it was off the table. She estimated that about 80 percent of the matters she's worked on this week are affected by the new rule.  She doesn't expect this to be the end of class actions, though. ‘I didn't call the business committee to say I need a new practice area,’ she said with a laugh.”

 Oh ha ha.  The class action defense lawyers think they still have jobs!  But that’s something, right?

Then, there is Congress.  Once again, it’s their job to fix some terribly misguided thing that the Supreme Court did.  Unfortunately, Congress doesn’t have a great track record on that score.  They still haven’t fixed the Medtronic decision, where the Court immunized the medical device industry for implanting dangerous devices that kill or injure people.  But that effort didn’t have what this one does – Sen. Al Franken!

Luckily, Senator Franken, who actually has a great track record persuading Congress to outlaw unfair arbitration agreements, is taking the lead on this one, too.  Responding to yesterday's decision, “U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Rep. Hank Johnson (D-Ga.) said today they plan to introduce legislation next week that would restore consumers' rights to seek justice in the courts. Their bill, called the Arbitration Fairness Act, would eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.”

And there’s even more good news!  Daniel Fischer for Forbes wrote this:

Contained within the sprawling law regulating the financial industry is Section 1028 ordering the new Consumer Financial Protection Bureau to study such arbitration agreements with an eye toward banning provisions it deems “anti-consumer.” Given acting CFPB Chair Elizabeth Warren’s views on the ability of consumers to understand complex financial agreements, it’s a safe bet the new agency won’t think highly of class-action waivers or binding arbitration agreements at all.

I’m feeling better already.

U.S. Civil Justice in Free Fall

The 30-year mission of corporate America to weaken the U.S. civil justice system -  with “tort reform” like contingency fee limits, mandatory binding arbitration and other proposals to force people into alterative compensation systems (which we have criticized specifically for their bias here, here) - has finally yielded exactly the results they seem to want.

The World Justice Project issued a new report today ranking the “rule of law” in 35 countries, including the United States. Full report here.

One of the four “universal principles” WJP examined was “access to justice,” defined as “access to legal representation and access to the courts,” calling these principles a “critical cornerstone for the implementation of policies and rights that empower the poor.”  As to civil justice, WJP  notes,

Access to civil justice requires that the system be affordable, effective, impartial, and culturally competent.  Impartiality includes absence of arbitrary or irrational distinctions based on social or economic status, and other forms of bias, as well as decisions that are free of improper influence by public officials or private interests.

Accessibility includes general awareness of available remedies, availability and affordability of legal advice and representation, and absence of excessive or unreasonable fees, procedural hurdles, and other barriers to access formal dispute resolution systems. Access to justice also requires fair and effective enforcement.

In ranking a country’s “Access to Civil Justice”, WJP considered eight factors:  

8.1 People are aware of available remedies

8.2 People can access and afford legal counsel in civil disputes

8.3 People can access and afford civil courts

8.4 Civil justice is impartial

8.5 Civil justice is free of improper influence

8.6 Civil justice is free of unreasonable delays

8.7 Civil justice is effectively enforced

8.8 ADR systems are accessible, impartial, and effective

In every single one of these categories, U.S. civil justice was worse (e.g., more biased, harder for victims to access the courts and legal counsel) than in countries in Western Europe and North America as a whole, and other “high income” nations throughout the world.  In fact, overall, the U.S. ranks last (7 out of 7) in the region, and last (11 out of 11) among high-income nations.  That's right.  LAST!

Access to civil justice has clearly sunk dramatically in the United States.  In fact, we've noted before this supreme irony: that while U.S. business and medical lobbies are running around trying to strip victims of their legal rights, China – one of the world’s worst human rights abusers – let alone having a pretty bad record on civil justice – is working to greatly broaden access to civil justice for its citizens. 

"Tort reform" is not the only cause of the poor U.S. ranking, of course.  The disgraceful demise of legal service programs in this country is certainly a huge part of it. 

But when corporate and professional lobbyists continue to try to limit injured people’s access to counsel as well as the power and authority of judges and juries, or replace the civil justice system with statutory administrative structures over which corporate money can have more control, look for things to get even worse. 

Once a shining light in the world, the U.S. civil justice system is no more.  Thanks for nothing, corporate America.

For Franken, Arbitration is No Joke

If anyone expected Minnesota Senator Al Franken’s artistry for comedy to blunt his interest and mastery of certain very serious legal and frankly (excuse the pun), not the hottest button issues around, you would be very mistaken. This is one pissed-off guy, and the issue for him is mandatory binding arbitration.

As we’ve noted a number of times, his interest in this issue originally stemmed from the Jamie Leigh Jones gang-rape case (here, here) but it’s certainly gone much further than that.  Last week, on the floor of the U.S. Senate, he savaged the U.S. Supreme Court’s recent pro-business, anti-consumer decisions, discussing, among other things, both the Jamie Leigh Jones case and the horrendous decision last week where the Court ruled that “an arbitrator – not a court – gets to decide if an arbitration clause is valid.”  (He repeated it three times. Check out the video below.) 

And yesterday, he raised the whole thing again at the Elena Kagen Supreme Court nomination hearings.  (As a side note, while there have been plenty of news reports about Kagen’s great sense of humor, don’t think for a minute that the Minnesota Senator who improvised so hilariously on SNL instigated any of that.)  

The Minneapolis Star Tribune reports:

Taking his turn, Franken pursued an issue he championed in the Senate: Barring federal contracts to defense companies that force workers to resolve disputes through mandatory arbitration rather than the open court, a measure inspired by the Jamie Leigh Jones rape case.

"Chances are, if you have a cell phone, a credit card, or you work, you're likely to have signed a contract with a mandatory arbitration clause," Franken said. "These clauses basically say 'if we violate your rights, you can't take us to court.'"

Senator Al Franken has not only become the Senate's staunchest civil justice advocate, he commands attention and gets things done.  Who knew? 

Watch Franken on the Senate floor here:

Rent At Your Own Risk

Who knew that rental industries would be the focus of such monumental news this week. 

First, you may have heard about the horrendous 5 to 4 civil rights decision out of the U.S. Supreme Court this week, Rent-a-Center v. Jackson.  Like many employers these days, Rent-a-Center had forced Antonio Jackson to sign an arbitration agreement in order to get a job, forcing him to agree that all disputes would end up in abusive, one-sided and costly arbitration. The court ruled that even though Jackson believed he had suffered racial discrimination and retaliation, not only was he stuck with arbitration but also, it was up to the arbitrators themselves to decide if their own unconscionable system was fair!  What the …? 

Today, the House Judiciary Committee is taking up a number of important bills, including one to help the families of victims of the Deepwater Horizon explosion.  (See consumer and environmental group letter here.) But they are also importantly taking up the Arbitration Fairness Act, which would help protect consumers and workers from these terrible anti-consumer, anti-worker mandatory arbitration systems, which the U.S. Supreme Court has once again made even worse.

Speaking of renting things, here’s another thing that needs fixing.  A few years ago, under the prior Administration, an amendment was “slipped into the 900-page 2005 transportation legislation at the behest of car rental companies, preempt[ing] numerous state vicarious liability laws, effectively immunizing rental car companies for renting cars to uninsured or underinsured drivers who are negligent and who could cause accidents and endanger the public” (to quote from another consumer group letter).  At the time this was done, 15 states had laws that required rental car companies to assume responsibility when their uninsured drivers caused accidents.     

It would be one thing if drivers could trust rental car companies to be looking out for everyone's safety.  But check out the California jury verdict this week against Enterprise Rent-a Car, in a case involving the families of two young women who were killed in their rented PT Cruiser when it burst into flames.  The Santa Cruz Sentinel reports,

The car had been subject to a recall to check for power steering fluid leaks that could cause a fire, but it was not repaired. The recall notice told owners of 435,000 PT Cruisers to contact a dealer for a service appointment, but did not ground the car.

"Given all we have learned, today we would ground the recalled PT Cruiser until repaired," said Greg Stubblefield, executive vice president and chief strategy officer for Enterprise, the nation's largest car rental company, which admitted liability.

Talk about an afterthought.

UPDATE:  The Center for Auto Safety is asking the Federal Trade Commission to examine Enterprise's recall policy.

Financial Reform - A Little Enforcement Would Be Nice

How to gut financial reform? Let me count the ways.  (Apologies to all PopTort poets for involving Elizabeth Barrett Browning in this mess!)  Of course, the “battalions of financial industry lobbyists descending on Capitol Hill,” as the President put it, already have.  And you knew their extreme fixation on preventing legal enforcement through the courts was bound to spill over into this fight.  So it has.

This weekend, as Senators try to figure out whether Senator Richard Shelby (R-AL ) will prevent the bill from even being debated (!), some key provisions may be “bargained out.”  What’s more, some were cut even before the current  bill was written. 

First, as is explained in more detail here, unlike the earlier financial reform bill, the current legislation omits much needed provisions to correct two U.S. Supreme Court decisions that essentially immunize banks, accountants, law firms and other institutions that help companies mastermind fraud (“aiding and abetting” fraud).  These decisions are a direct blow to defrauded American investors and make it more likely fraud will occur.  As it’s unlikely these critical provisions will be put back before (and if) the legislation proceeds to the Senate floor, expect Senator Arlen Specter (D-PA) who has been passionate about this issue, to try to put it back when it hits the floor.  (More background on Specter and the broader issue here.)  Let’s hope he succeeds.  Nothing like crooked accountants to compromise the integrity of American markets.

Second, there is an important pro-consumer anti-arbitration clause currently in the bill that may be at risk.  All this provision does is allow regulators to limit mandatory arbitration clauses in consumer and investor contracts, like credit cards.  Ironically, the banks themselves have already been sued by state Attorneys General over this widely-unpopular practice that forces consumers to resolve dispute in a grossly unfair and biased forum.  As a result, many banks have now actually backed off using forced arbitration.  (Click here for more information and to take action.)

And speaking of Attorneys General, Illinois state AG Lisa Madigan has an op ed today expressing real concern that the power of states to enforce financial regulations may also be on the chopping block!  (We’ve blogged here about her suit against Countrywide. ) This can’t be!  She writes in the State Journal-Register:

I’m among the handful of people who investigated and sued some of the largest subprime lenders for their illegal acts. I’ve testified repeatedly before Congress. They all act like this situation is dizzyingly complex. It isn’t. If they can create a trillion-dollar bailout in a few days, they can demand meaningful reform in less than a decade.

I have been in this fight for years. I welcome Washington’s newfound interest in cleaning up the mess, but I worry about its commitment to real change. Now, as Congress is on the verge of passing reforms, it appears they’re going to bargain away state enforcement powers. That’s not meaningful reform and Congress knows it. It is vital the state attorneys general retain authority to pursue fraudulent financial practices to make the process honest.

So let's see, we count three ways (so far.)  Let us know if we missed anything!

Military Contractors Misbehavin’

There are surely some clever take-offs of the Fats Waller standard Ain’t Misbehavin'.   There’s the Simpson episode, Eight Misbehavin’.  And the Wavy Gravy movie Saint Misbehavin'.  Even a TLC show called Paint Misbehavin'.  Admittedly, they’re all much catchier than “Defense Contractors Misbehavin,” but who needs clever when there’s an age-old contest at stake, that is, the battle over which is a worse military contractor: KBR or Blackwater. 

On the one hand, we have Blackwater.  Last night on 60 Minutes, there was the story of a widow who sued Blackwater after her husband was killed when some Blackwater pilots essentially took a plane on a joy-ride in the middle of Afghanistan and crashed it into a mountain.  As is typical, the military contractor tried to hide behind government immunity to get out from under this lawsuit, before eventually settling once 60 Minutes started asking questions. 

KBR, on the other hand, is not only being sued by many vets for running lethal burn bits in Iraq and Afghanistan, but they’re also challenging the decision allowing the case of Jamie Lee Jones to move forward in court.  Jones, who was drugged and raped by KBR employees, now has to endure a new ordeal – having KBR call her a liar.  This is the same case that led to national outrage about companies like KBR trying to force victims like Jones into arbitration, rather than allowing her to have her day in court against the company – which led to action by Congress. 

As for the most recent Blackwater impropriety, check out 60 Minutes below.  (Apologies for the Lipitor commericial.)  Let us know what you think!

Watch CBS News Videos Online

Will the Supreme Court’s Citizens United Decision Declaw our State AG’s?

Right now, there probably no way to adequately describe the horror that the U.S. Supreme Court just rained down on this country with its decision yesterday in Citizens United v. FEC.  As the New York Times put it today,  “With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century.  Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.” 

Yes, Congress must fix this somehow, but it’s also good to know that there are state Attorneys General out there who are trying to stop fundraising corruption and see this as part of their job.  Like NY’s AG Andrew Cuomo, who filed a lawsuit Wednesday against four New York “fundraising” companies to “shut them down for lying manipulating, and deceiving to get charitable donations.”

The suit is the result of a six-month sting operation in which law enforcement officials obtained jobs with the companies, and found their telemarketers:

   
  * Used aliases and illegally failed to disclose they were paid fund-raisers.

  * Changed the names of charities to sound similar to well-known charities or causes.

  * Lied about the programs client charities actually provided.

  * Filed false annual documents with the state attorney general's office containing fake scripts that were made to seem like the ones used by their telemarketers.

Consumer friendly state AG’s have already had a big target on their back for protecting the public from all sorts of corporate misbehavior.  The terrifying impact of Citizens United on state AG races can only be imagined.  Brace yourselves.

A Week of Mixed Messages, Civil Justice Style

In the mid-1980s, both Maryland and Missouri enacted pretty severe “caps” on compensation, which did nothing to reduce insurance rates for doctors. (Among other states.  See Appendix for full list.) While the hopes of Maryland patients were dashed this week when the Maryland Court of Appeals upheld the caps, overturning a lower court decision that had invalidated them, patients in Missouri had renewed hope.  The Missouri Supreme Court heard arguments this week asking that their state’s severe cap be overturned.  This comes after a dynamite St. Louis Post-Dispatch editorial slamming the medical establishment for forcing this cruel law on Missouri citizens, which we wrote about.

Also this week, Senator Patrick J. Leahy (D-VT), who chairs the U.S. Senate Judiciary Committee, as well as 18 other Senators, sent letters to President Obama and leaders in Congress “urging them to repeal the limited exemption for insurers from federal antitrust laws as part of the final version of major health care legislation.”  Incredibly, the insurance industry is the only industry in the country allowed to engage in anti-competitive behavior - except for Major League Baseball, that is.  That’s why, while the insurance industry’s right to price-fix and collude is being condemned, the NFL went to the U.S. Supreme Court this week and asked that the exemption apply to them!  Interesting timing.

And finally, the rabidly anti-civil justice organization, the U.S. Chamber of Commerce, never disappoints with its own brand of mixed messages, announcing again that it may be suing the Environmental Protection Agency over its greenhouse gas policy! Here’s how Chamber CEO Tom Donohue put it: “There are a number of options and processes available both in the courts and in other parts of government.”  How nice for them.  Meanwhile, the Chamber hosted a conference this week on the economy to push its anti-consumer business agenda, in a space constructed by and paid for by AIG.  On second thought, no mixed message there!   

Al Franken’s Defense Amendment, Providing Recourse for Rape Victims, on its Way to Becoming Law

Clearing the way for the real squeaker 60-40 Senate vote on health care at 1 a.m. this morning, was another key weekend Senate vote – the 2010 Defense Appropriations bill – which passed Saturday night by a less squeaky margin 88-10.  The bill kept in tact Senator Al Franken’s amendment, which prohibits the Defense Department during this appropriations year, from contracting with companies that prohibit rape victims from accessing the courts.  It will now be sent to the White House where President Obama is expected to sign it into law. (It already passed the House.)

The most shocking thing about all of this was not just that it was needed in the first place, but that lots of Senators voted against it with the apparent backing of the U.S. Chamber of Commerce.

In an op-ed published in today’s Minneapolis Star Tribune, Franken writes passionately about the company’s policy of denying such victims the right to bring lawsuits against those responsible, forcing them into mandatory binding arbitration.

No corporation -- no matter how powerful, how well-connected, how seemingly impenetrable -- should be permitted to rob its workers of their rights.

But that's exactly what happens when someone signs up to work for companies like KBR. Most people don't realize it when they're signing a stack of employment papers, but they're agreeing to give up their right to have their day in court.

In arbitration, there is no public record of the proceedings, no transparency and no accountability. It's the employer that typically pays for -- and in some cases, even selects -- the arbitrator. That's why in rape cases, the outcome of the binding arbitration has stipulated that the victim remain silent. There is no way for the next 20-year-old woman who signs up to work for KBR to hear about what happened to [rape victim] Jamie Leigh Jones….

Hopefully, this represents another nail in the coffin for these involuntary, unfair schemes.