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(AlterNet)   If you were been gouged by your bank, discriminated against, sexually harassed, unfairly fired, cheated on wages, sold a shoddy product, denied health care coverage or otherwise harmed by a corporation, you can't sue   (alternet.org ) divider line
    More: Asinine, fairs, corporate lawyers, Mae West, wages  
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3527 clicks; posted to Business » on 28 Mar 2013 at 10:40 AM (3 years ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



43 Comments   (+0 »)
   
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2013-03-28 10:31:54 AM  
AT&T v. Concepcionis a terrible decision.
 
2013-03-28 10:45:58 AM  
The fact that courts have upheld these agreements is the real insanity.
 
2013-03-28 10:51:53 AM  
Who do they think they are, the government?
 
2013-03-28 10:53:30 AM  

t3knomanser: The fact that courts have upheld these agreements is the real insanity.


They tried striking them down, and the Supreme Court told them they couldn't do that, because of a law written 80 years ago before the invention of the mandatory binding arbitration clause.
 
2013-03-28 10:53:41 AM  
Shiat, George Carlin could have told you that (NSFW language obviously). What part of "they own you" don't you understand?
 
2013-03-28 10:59:48 AM  
Of course you can't sue. They are only people when it is convenient for them to be so. Shifty buggers.
 
2013-03-28 11:00:54 AM  
My wife is an attorney and also a licensed arbiter - although she does little work as one.

Why?

Because the arbiters that get chosen are hand-picked by the businesses that hire them. Most of them actually come from the industries that they will make judgements for/against. The system as it is has become essentially a situation in which the business gets to bring their own judge.
 
2013-03-28 11:32:56 AM  

madgonad: Because the arbiters that get chosen are hand-picked by the businesses that hire them. Most of them actually come from the industries that they will make judgements for/against. The system as it is has become essentially a situation in which the business gets to bring their own judge.


How is this legal? You can't sign away civil rights, correct? I can't sign away my right to free speech (unless I join the military, and even then I retain the right as an individual citizen), so how is it legal for me to sign away my right to trial?

// or does that only apply to criminal trials?
// regardless, if a bank commits a crime (like theft, by withholding funds that are legally yours), do you have to go through arbitration first?
// what about whistle-blowers (which are also criminal cases)?
 
2013-03-28 11:42:15 AM  

Dr Dreidel: I can't sign away my right to free speech


Oh, but you can. Ever hear of an NDA?

Dr Dreidel: like theft, by withholding funds that are legally yours


Check your agreement with the bank. They may not be required to turn over funds simply because you request them. You agreed to let the bank have your money, and they agreed to give it back to you- but there may be all sorts of conditions on when and how they're actually expected to do that.
 
2013-03-28 11:48:10 AM  

t3knomanser: Dr Dreidel: I can't sign away my right to free speech

Oh, but you can. Ever hear of an NDA?


Also HIPAA (which I have been subject to in the past). I consider that more of the "job description" type of exemption, not entirely unlike the military's - for example, I can't sue my employer for denying me my civil right of movement because they force me to stay in the office.

As a private citizen, I cannot sign away my right to free speech.
 
2013-03-28 11:50:59 AM  

Dr Dreidel: As a private citizen, I cannot sign away my right to free speech.


That's still not true. Private citizens enter into NDAs all the time. Anybody who's ever played a private beta of a game has agreed to an NDA. A company can offer you a service on the condition that you do not talk about the service. Companies can and have made continued service conditional on you not talking about their quality of service.
 
2013-03-28 12:05:37 PM  
Contracts - much like magnets - are magic!
 
2013-03-28 12:07:35 PM  
I dont have a law degree, but with an NDA wouldn't the party have to show that damages occurred?
 
2013-03-28 12:10:17 PM  

Dr Dreidel: madgonad: Because the arbiters that get chosen are hand-picked by the businesses that hire them. Most of them actually come from the industries that they will make judgements for/against. The system as it is has become essentially a situation in which the business gets to bring their own judge.

How is this legal? You can't sign away civil rights, correct? I can't sign away my right to free speech (unless I join the military, and even then I retain the right as an individual citizen), so how is it legal for me to sign away my right to trial?

// or does that only apply to criminal trials?
// regardless, if a bank commits a crime (like theft, by withholding funds that are legally yours), do you have to go through arbitration first?
// what about whistle-blowers (which are also criminal cases)?


Easy. Any time you 'sign up' for something or click a EULA or agree to a contract with a business you should expect binding arbitration to be included in there for ALL claims. Sure, you don't have to do business with them, but that is the standard. Try getting wireless service on an iPhone without agreeing to it. Or opening a checking account. Or getting a mortgage.
 
2013-03-28 12:15:32 PM  

madgonad: Easy. Any time you 'sign up' for something or click a EULA or agree to a contract with a business you should expect binding arbitration to be included in there for ALL claims.


I get that, but is it legally enforceable. If an entity with whom you do business commits a crime, do you have to go through arbitration, or can you file charges with the cops (either as a whistleblower or not, but I'd imagine if you could legally call yourself a whistleblower, they can't forbid you from suing)?
 
2013-03-28 12:21:23 PM  
I'm not usually a fan of Alter Net and their favicon that makes me think I have an Amazon tab open, but I fully endorse any article that uses the word "skullduggery".
 
2013-03-28 12:27:55 PM  

Dr Dreidel: If an entity with whom you do business commits a crime, do you have to go through arbitration


If it's an actual criminal case, it is the  state that prosecutes the case, not you. But if you want to recover damages from them, then yes, you'd be going through arbitration.
 
2013-03-28 12:35:22 PM  
My favorite part, The Corp. gets to pick the arbitrator, you get to pay for it.

So not only do you have to pay for your own council and fly to the city/state they decide to arbitrate in, you get to pick up the tab for the guys screwing you.

And if you dont show up, they win!
 
2013-03-28 12:44:41 PM  
I start feeling all stabby every time this topic comes up.
 
2013-03-28 12:53:05 PM  
Like "corporate personhood" this is part of the big-money conservative movement in the courts in recent years. It's called "freedom to contract" and it's an old, old principle that's been used to justify everything that a scumbag corp gets away with these days, from "licensed" software that is indistinguishable from owned to binding arbitration to predatory lending to "limited warranties" to every other sort of scumbag deal imaginable. A corporation can put anything they want into a contract, and in only very limited circumstances will the court rule that the poor bastard signing it doesn't get screwed.
 
2013-03-28 12:54:06 PM  

t3knomanser: Dr Dreidel: If an entity with whom you do business commits a crime, do you have to go through arbitration

If it's an actual criminal case, it is the  state that prosecutes the case, not you. But if you want to recover damages from them, then yes, you'd be going through arbitration.


But don't I have to file a report? I'm thinking of robbery charges and the like, where I report the crime - the state takes over once probable cause has been established, but am I even allowed to go to the cops before attending an arbitration hearing?
 
2013-03-28 12:58:28 PM  

Dr Dreidel: am I even allowed to go to the cops before attending an arbitration hearing?


Sure.  And they'll tell you it's a civil matter and send you packing.

Cops don't have time to build cases against businesses with well-funded lawyers.  It's much more profitable to write traffic tickets and jail potheads.
 
2013-03-28 01:03:44 PM  

NightSteel: Dr Dreidel: am I even allowed to go to the cops before attending an arbitration hearing?

Sure.  And they'll tell you it's a civil matter and send you packing.

Cops don't have time to build cases against businesses with well-funded lawyers.  It's much more profitable to write traffic tickets and jail potheads.


If I come to the cops with evidence that a crime has been committed (not a breach of contract; a crime per PL.123.69.ABC.seat 12 or whatever), they'll tell me it's a civil matter?

Not that I doubt that has happened (I know of stories where cops didn't investigate because they thought it was a different jurisdiction. A buddy got a personal apology from DC Police Chief Kathy Linnear over one like that), but I mean in an ideal setting where cops aren't all donut-assed dog-shooters.
 
2013-03-28 01:07:07 PM  

Dr Dreidel: NightSteel: Dr Dreidel: am I even allowed to go to the cops before attending an arbitration hearing?

Sure.  And they'll tell you it's a civil matter and send you packing.

Cops don't have time to build cases against businesses with well-funded lawyers.  It's much more profitable to write traffic tickets and jail potheads.

If I come to the cops with evidence that a crime has been committed (not a breach of contract; a crime per PL.123.69.ABC.seat 12 or whatever), they'll tell me it's a civil matter?

Not that I doubt that has happened (I know of stories where cops didn't investigate because they thought it was a different jurisdiction. A buddy got a personal apology from DC Police Chief Kathy Linnear over one like that), but I mean in an ideal setting where cops aren't all donut-assed dog-shooters.


You don't go to the cops.  You go to the DA.  With a pile of cash for his re-election campaign.  Then you see some fireworks.
 
2013-03-28 01:07:10 PM  
there are lots of problems with a sue-crazy society...but start reform with personal responsibiity type issues...these corporate-pandering decisions are just, dare I say it (dare, dare!) actionable.
 
2013-03-28 01:11:03 PM  
"were been"?
 
2013-03-28 01:17:30 PM  
Arbitration?

To be a dis-interested third party who is mutually chosen by both parties in an attempt to resolve a dispute. One or both parties can refuse the Arbitrators decision unless a contract was signed before arbitration that states that the Arbitrators decision is final with no backsees.

An Arbitrator who is in full employment of the company is not un-biased and only Morans will allow the arbitration since they don't know their Rights.

/Only idiots think that they have no Right to sue with an Arbitration clause in their service agreement.
//A contract that is heavily one party is an unfair contract and therefore unenforceable. [Hardship clause]
 
2013-03-28 01:17:55 PM  
the 7th amendment applies to the government, not to its owners.
 
2013-03-28 01:24:29 PM  

Dr Dreidel: I mean in an ideal setting


In an ideal setting, you wouldn't have to.  Corporations would act with ethics, cops would investigate crimes with professionalism and impartiality, the DA would prosecute any outliers, and the courts would deliver justice.

Cops/the DA have no duty to follow up on any particular crime.  They decline to investigate and/or prosecute all the time.  The law gives them that discretion.  Also, good luck coming up with evidence good enough to counter a company who WILL, through its lawyers, lie through their teeth, wage public disinformation/smear campaigns, and resort to anything else they feel is necessary to win.

I'd like to live in a world where the justice system delivered justice myself.  But until there's no money in politics, we won't.
 
2013-03-28 01:30:22 PM  

sheep snorter: Arbitration?

To be a dis-interested third party who is mutually chosen by both parties in an attempt to resolve a dispute. One or both parties can refuse the Arbitrators decision unless a contract was signed before arbitration that states that the Arbitrators decision is final with no backsees.

An Arbitrator who is in full employment of the company is not un-biased and only Morans will allow the arbitration since they don't know their Rights.

/Only idiots think that they have no Right to sue with an Arbitration clause in their service agreement.
//A contract that is heavily one party is an unfair contract and therefore unenforceable. [Hardship clause]


What are you, 15?  That's what the phrase 'mandatory binding arbitration' means; the arbitrator's decision is final and unappealable.  It's well-documented that the arbitrators ARE biased (they rule for the corporation 95-100% of the time), the courts don't care.  It's well-documented that such contracts ARE unfair (they are take-it-or-leave-it contracts of adhesion), the courts don't care.  The Supreme Court has ruled multiple times that mandatory binding arbitration agreements ARE legal and enforceable, and us proles can go screw.

You overestimate your chances in court.  Unless you happen to be rich, then you might win or get a settlement on that simple fact.
 
2013-03-28 01:49:00 PM  
Isn't this why we have the A-Team?

/I pity the fool who didn't read the contract.
 
2013-03-28 02:19:23 PM  

NightSteel: It's well-documented that the arbitrators ARE biased (they rule for the corporation 95-100% of the time)


This is not true. It is shown in a specific type of case (generally credit card defaults not handled by settlement) they do rule in favor of the financial institutions 95% of the time. Try to find a specific source that shows they rule for corporations in general that often.
 
2013-03-28 02:25:49 PM  
If anyone cares (unlikely) there is a lot of evidence that the 95% number used in the article is complete BS. Most of the research on this shows that repeat player bias does have some impact on results, but it isn't nearly as large as people think and it is quite likely that it is still cheaper for consumers to use arbitration (the loss from the repeat player bias is lower than the added cost for going to trial).
 
2013-03-28 03:39:51 PM  
Go home, headline, you're drunk.
 
2013-03-28 03:56:39 PM  
The erosion of the 10th amendment plays into this, too.

States should have the right to regulate these kinds of contracts.
 
2013-03-28 05:06:29 PM  
Basically the position of the government and the courts is that businesses cannot force you to agree to binding arbitration but they can make it a condition of doing business with them.  Your choice is to agree or take your business elsewhere.  The fact that often that is not a realistic choice is deemed irrelevant.
 
2013-03-28 05:22:33 PM  
Well this is going to go on until some enterprising fellow walks into an arbitration and just shoots every mother farker on the opposite side. Yeah, it is getting to the point that the only rights you have are those you can enforce yourself.
 
2013-03-28 06:21:43 PM  

Treygreen13: "were been"?


Turns into a garbanzo during a full moon.
 
2013-03-29 12:07:22 AM  

You're the jerk... jerk: If anyone cares (unlikely) there is a lot of evidence that the 95% number used in the article is complete BS. Most of the research on this shows that repeat player bias does have some impact on results, but it isn't nearly as large as people think and it is quite likely that it is still cheaper for consumers to use arbitration (the loss from the repeat player bias is lower than the added cost for going to trial).


Who funded your cited study?
 
2013-03-29 01:52:30 AM  

Slaves2Darkness: Well this is going to go on until some enterprising fellow walks into an arbitration and just shoots every mother farker on the opposite side. Yeah, it is getting to the point that the only rights you have are those you can enforce yourself.


Quiet, American Idol is on.
 
2013-03-29 07:16:13 AM  

nmemkha: You're the jerk... jerk: If anyone cares (unlikely) there is a lot of evidence that the 95% number used in the article is complete BS. Most of the research on this shows that repeat player bias does have some impact on results, but it isn't nearly as large as people think and it is quite likely that it is still cheaper for consumers to use arbitration (the loss from the repeat player bias is lower than the added cost for going to trial).

Who funded your cited study?


Law Journal studies are rarely "funded" (professors do the work and law schools pay for the interns who help out) and that was just one specifically focused on the results mentioned in the article. You can find plenty, many that come up with ways to get around the repeat player bias. Almost none try to eliminate arbitration. Court is very expensive, not particularly fair and in many ways better for the large party. Being able to appeal sounds nice, but appeals are expensive and that sword cuts both ways.

For reference, when I did analysis for a professor on NASD arbitration (now FINRA) we found the arbitrators were slightly more likely to find in favor of the consumer. But I think FINRA has a better system then most.
 
2013-03-29 10:55:30 AM  

You're the jerk... jerk: nmemkha: You're the jerk... jerk: If anyone cares (unlikely) there is a lot of evidence that the 95% number used in the article is complete BS. Most of the research on this shows that repeat player bias does have some impact on results, but it isn't nearly as large as people think and it is quite likely that it is still cheaper for consumers to use arbitration (the loss from the repeat player bias is lower than the added cost for going to trial).

Who funded your cited study?

Law Journal studies are rarely "funded" (professors do the work and law schools pay for the interns who help out) and that was just one specifically focused on the results mentioned in the article. You can find plenty, many that come up with ways to get around the repeat player bias. Almost none try to eliminate arbitration. Court is very expensive, not particularly fair and in many ways better for the large party. Being able to appeal sounds nice, but appeals are expensive and that sword cuts both ways.

For reference, when I did analysis for a professor on NASD arbitration (now FINRA) we found the arbitrators were slightly more likely to find in favor of the consumer. But I think FINRA has a better system then most.


You didn't answer the question.
 
2013-03-29 11:38:17 AM  

nmemkha: You're the jerk... jerk: nmemkha: You're the jerk... jerk: If anyone cares (unlikely) there is a lot of evidence that the 95% number used in the article is complete BS. Most of the research on this shows that repeat player bias does have some impact on results, but it isn't nearly as large as people think and it is quite likely that it is still cheaper for consumers to use arbitration (the loss from the repeat player bias is lower than the added cost for going to trial).

Who funded your cited study?

Law Journal studies are rarely "funded" (professors do the work and law schools pay for the interns who help out) and that was just one specifically focused on the results mentioned in the article. You can find plenty, many that come up with ways to get around the repeat player bias. Almost none try to eliminate arbitration. Court is very expensive, not particularly fair and in many ways better for the large party. Being able to appeal sounds nice, but appeals are expensive and that sword cuts both ways.

For reference, when I did analysis for a professor on NASD arbitration (now FINRA) we found the arbitrators were slightly more likely to find in favor of the consumer. But I think FINRA has a better system then most.

You didn't answer the question.


I don't know how you want me to answer that question, this isn't like medical research where funding is in the millions. Depending on what you mean the answer is probably a combination of no one, Ohio State University, Penn State University and Squire Sanders (an international law firm). None of these parties really have anything to gain from promoting ADR, and unless you have criticism of their methodology then you should really rethink your position.
 
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