A couple weeks ago Don midwest @ The Daily Kos penned a piece (it’s a little confusing as it references a 5th cousin related piece on plea bargains) on the loss of access to courts as enforced through the fine print of contracts that no one reads, as documented by The New York Times:
By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.
Examples:
Patricia Rowe of Greenville, S.C., learned this firsthand when she initiated a class action against AT&T. Ms. Rowe, who was challenging a $600 fee for canceling her phone service, was among more than 900 AT&T customers in three states who complained about excessive charges, state records show. When the case was thrown out last year, she was forced to give up and pay the $600. Fighting AT&T on her own in arbitration, she said, would have cost far more.
By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.
I had noticed these arbitration notices from time to time, but had not paid attention: no more.
I think there are a few options to follow up:
- Change state and/or federal law to disallow the use of arbitration, or to expressly permit class action suits despite arbitration clauses.
- For those companies that are public, become shareholders in the more egregious offenders and raise a ruckus! Any shareholder may submit a shareholder proposal to be voted on at annual company meetings. A rough draft of the text might be,
Whereas the American legal system applies to everyone with a legal grievance, and the right to profit in the free market system is secondary to the right to legal redress, this proposal asks the board of XYZ corporation to ban the use of arbitration clauses in all contracts made with consumers.
- A more difficult option is to take the GoFundMe approach to consumers who face problems typical of the one in the example. The central problem seems to be resources to fight what is, individually, an unjust but non-crippling action by the corporation. By provision of resources, the consumer can continue the fight; conversely, a corporation that expects almost all arbitration cases to be abandoned could be in for a shock when most of the cases are retained and fought. This will require extra resources from the company.I do regard this approach as problematic.
- Question the neutrality of the arbitration. If that can be broken, then where be the contract? Consider this recent example:
Even some N.F.L. cheerleaders have had to agree to [arbitration clauses]. When a group of cheerleaders sued the Oakland Raiders over working conditions, they discovered that Roger Goodell, the N.F.L. commissioner, would preside over the arbitration. The Raiders later agreed to use someone else.
The importance of the legal system as a neutral arbitrator, under the law, of disputes cannot be exaggerated; private systems of justice are too prone to corruption to be trusted, as history shows.
Spread the word. The Supreme Court is not a friend to the consumer:
One of the players behind the scenes, The Times found, was John G. Roberts Jr., who as a private lawyer representing Discover Bank unsuccessfully petitioned the Supreme Court to hear a case involving class-action bans. By the time the Supreme Court handed down its favorable decisions, he was the chief justice.
This will have to be resolved legislatively.
My apologies for the formatting of the above, the software is not cooperating in my efforts. The two dotted items are really 3 & 4, respectively.
