Yesterday's Hearing on Arbitration

by Paul Bland

  Yesterday, Thursday, October 25, 2007, the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law held its second hearing on H.R. 3010, Rep. Hank Johnson's Arbitration Fairness Act. (This Subcommittee has jurisdiction over the bill.) H.R. 3010 would ban the use of pre-dispute binding mandatory arbitration in consumer, employment, franchise and medical contracts. (The first hearing was held on June 12th. I testified at it, and my testimony and a transcript of the hearing can be found on the Public Justice website.)

Three members of the Subcommittee attended the hearing. The first is Subcommittee Chairwoman Linda T. Sanchez. Rep. Sanchez has not yet co-sponsored the bill, but she spoke very sympathetically towards the situation of consumers and employees who have been treated poorly in mandatory arbitration systems. It also can’t be understated that Rep. Sanchez showed that she has put a lot of time into understanding the details of the issue, and she (along with her staff) have obviously put a great deal of work into interviewing and locating witnesses and giving both sides an opportunity to develop an extensive record. The second is Rep. Johnson, the sponsor of the bill, who is a courtly freshman representative from Georgia and a powerful orator. The third member was Ranking Subcommittee member Chris Cannon, who is a huge and uncritical fan of mandatory arbitration. In the course of carrying the water of the Chamber of Commerce on the issue, Rep. Cannon’s duties apparently include trying to craft personal attacks on anyone who comes forward with an individual story of having been abused by mandatory arbitration.

There were two panels. On the first panel:

Laura MacCleery, Director of Public Citizen's Congress Watch Division, who spoke about Public Citizen's report summarizing more than 34,000 arbitrations handled by the National Arbitration Forum in California, and who also spoke in some detail about the problem of arbitration clauses that ban class actions. I have written in several forums that our law firm’s experience (interviewing hundreds of consumers, and dozens of consumer lawyers, strongly supports the conclusions of Public Citizen’s groundbreaking report). Laura spoke with fervor and energy, and was very articulate. Rep. Cannon tried to get her to admit that Public Citizen’s report is very limited in scope, but Laura pointed out (correctly) that it covered EVERY SINGLE case that the National Arbitration Forum reported handling in California over a period of several years.

Richard Naimark, Senior Vice President of the American Arbitration Association. He spoke about AAA's Due Process Protocols, and steps that AAA has taken to try to make arbitration more fair. As the lead Republican/Chamber witness opposing the bill, Naimark was an excellent choice, because AAA’s conduct compares favorably with that of the National Arbitration Forum. Nonetheless, Chairwoman Sanchez asked Naimark some hard questions about how it was that the AAA had decided that health care cases such as medical malpractice cases were too important to be the subject of binding pre-dispute arbitration clauses, but that employment civil rights and consumer protection cases were not sufficiently important. Naimark responded that medical cases were qualitatively different, but Rep. Sanchez was not appeased. She pressed him and noted that civil rights and consumer cases seemed very important to her as well. One notable element of Mr. Naimark’s testimony was that he openly acknowledged the case law setting forth the incredibly narrow scope of judicial review of arbitrators' decisions, and he accepted the statement that arbitrators’ decisions are not subject to meaningful judicial review. (Naimark's honesty on this point is not uniform in the industry.  The NAF’s Executive Director, by contrast, has repeatedly publicly tried to pretend that this huge body of published case law does not apply to the NAF.)

  Former Georgia Governor Roy Barnes, who is now an attorney for consumers, spoke about the way arbitration clauses are used to protect pay day lenders, even when their actions are criminal. He described how the payday lending industry operates with passion and energy, and then spoke about how the U.S. Supreme Court’s decision in Buckeye Check Cashing v. Cardegna leaves to arbitrators the question of whether a contract violates a state’s criminal law. In the course of questioning, even Rep. Cannon appeared to agree with Governor Barnes that the Buckeye case presents a ridiculous rule of law that Congress should address.

The final witness was Ken Connor, a lifelong Republican activist and movement conservative, with close ties to former Florida Governor Jeb Bush (he was Bush’s attorney in the Terry Schiavo case, for example) and a former head of the Family Research Council. In his private practice, Mr. Connor represents victims of malpractice and abuse in nursing homes, and spoke for several minutes about horrific cases of abuse that he's encountered in nursing homes (detailed descriptions of bruises, people left in their own urine, etc.). He moved on to describe how arbitration clauses are pushed on people who are vulnerable when they are in no position to say "no," and explained how arbitrators (who tend to be attorneys for other nursing homes) tend to rule for the nursing homes and rig the system in favor of the homes.

On the second panel:

Deborah Williams, a Maryland woman (and another lifelong Republican) who, along with her partner Richard Welshan, had a franchise with the Coffee Beanery, which cheated her in a variety of ways. Despite a finding by the Maryland Attorney General that the Coffee Beanery committed fraud, she was forced by the American Arbitration Association to arbitrate her claims in Michigan (500 miles from her home), spent more than $100,000 on arbitration fees to the AAA. For all of her pains, the arbitrator disagreed with the Maryland Attorney General and entered a large award against her. The arbitrator also entered a "loser pays" attorneys' fee award against her, requiring Ms. Williams and her partner to pay the Coffee Beanery’s attorneys’ fees. In the low point of the hearing, Rep. Cannon essentially tried to get Ms. Williams to agree that all of her problems were her fault for not researching the Coffee Beanery on the internet and discovering in advance that they were defrauding people. Ms. Williams described the various steps that she had taken to do due diligence about the Coffee Beanery prior to becoming a franchisee, but Rep. Cannon persisted in trying to get her to say that her problems were all her own fault.

Cathy Ventrell-Monsees, a civil rights lawyer who testified on behalf of the National Employment Lawyers Association, who passionately spoke in some detail about how employees often find arbitration rigged against them. She gave several illustrations -- Halliburton has won every case arbitrated against it by an employee, for example. She also spoke about the high costs of arbitration to employees.

Professor Peter Rutlege of Catholic University's law school, who used to work on behalf of major banks at the law firm of Wilmer Cutler & Pickering, and has filed various amicus briefs in support of mandatory arbitration, appeared on behalf of the Chamber of Commerce. Picking and choosing among the limited empirical record, he insisted that the best data shows that arbitration is better for consumers, and called for further research into the matter.

The final witness was Theodore Eppenstein of New York, a securities lawyer who argued that securities arbitrators not only rule for brokers more often than investors compared to court, but also in smaller awards. He recommended that the bill be amended to make it more explicit that pre-dispute binding arbitration is banned in securities cases. He refuted some of Professor Rutledge’s statements about the empirical record.

It was a very powerful day of testimony.

By the way, there are now 36 co-sponsors of the AFA, up from 29 last week, with three Republican co-sponsors. They are all listed below.

• Rep Baldwin, Tammy [WI-2] - 10/16/2007
• Rep Barrow, John [GA-12] - 7/12/2007
• Rep Brady, Robert A. [PA-1] - 10/3/2007
• Rep Braley, Bruce L. [IA-1] - 7/12/2007
• Rep Capuano, Michael E. [MA-8] - 10/16/2007
• Rep Cleaver, Emanuel [MO-5] - 10/22/2007
• Rep Cohen, Steve [TN-9] - 7/12/2007
• Rep Cummings, Elijah E. [MD-7] - 7/12/2007
• Rep Davis, Danny K. [IL-7] - 7/30/2007
• Rep DeFazio, Peter A. [OR-4] - 10/16/2007
• Rep Doggett, Lloyd [TX-25] - 10/16/2007
• Rep Doolittle, John T. [CA-4] - 10/3/2007
• Rep Ellison, Keith [MN-5] - 7/12/2007
• Rep Fattah, Chaka [PA-2] - 10/16/2007
• Rep Filner, Bob [CA-51] - 10/16/2007
• Rep Frank, Barney [MA-4] - 8/3/2007
• Rep Gonzalez, Charles A. [TX-20] - 7/12/2007
• Rep Green, Al [TX-9] - 10/16/2007
• Rep Green, Gene [TX-29] - 10/22/2007
• Rep Grijalva, Raul M. [AZ-7] - 9/7/2007
• Rep Jackson-Lee, Sheila [TX-18] - 10/24/2007
• Rep Kucinich, Dennis J. [OH-10] - 7/30/2007
• Rep LaTourette, Steven C. [OH-14] - 10/24/2007
• Rep Lewis, John [GA-5] - 7/12/2007
• Rep Lynch, Stephen F. [MA-9] - 10/24/2007
• Rep McGovern, James P. [MA-3] - 10/16/2007
• Rep Nadler, Jerrold [NY-8] - 10/16/2007
• Rep Pallone, Frank, Jr. [NJ-6] - 10/16/2007
• Rep Payne, Donald M. [NJ-10] - 10/16/2007
• Rep Sarbanes, John P. [MD-3] - 10/3/2007
• Rep Schakowsky, Janice D. [IL-9] - 7/12/2007
• Rep Solis, Hilda L. [CA-32] - 10/16/2007
• Rep Stark, Fortney Pete [CA-13] - 10/24/2007
• Rep Sutton, Betty [OH-13] - 7/30/2007
• Rep Tierney, John F. [MA-6] - 10/22/2007
• Rep Wasserman Schultz, Debbie [FL-20] - 9/7/2007

Comments

[Fred]

Deborah Williams deserves what she got for not doing due dilegence in the first place. Rep. Cannon was about the only person on the committee making sense. In addition to that, she did appeal the judgment to the District court in Eastern Michigan, which found all of her claims to be without merit. That's a court of law, not an arbitration panel.

And here's the good part:

"In any event, pursuant to the Consent Order-which was premised on the violation of Maryland franchise law-the Maryland Securities Commissioner required the Coffee Beanery and Kevin Shaw to offer respondents the opportunity to rescind the franchise agreement by sending them a letter “in substantially the form attached to [the Consent Order] as Exhibit 1 ....” According to that letter, a franchisee had to respond within thirty (30) days in order to invoke its right to rescind. Respondents apparently failed to accept the offer within the allotted time period." 501 F.Supp.2d 955

So the "Star Witness" actually turned down an offer to get out of her franchise agreement. Which is where the arbitration clause was. The Maryland securities commisioner tried to help her, but she (or her lawyers) didn't want it. Oops.

[deborah williams]

Fred has the story wrong.
The Consent Order is not in question. In Marylnad you get both.

Putting that aside, how do justify an arbitrator knowing Maryland Franchise Registration and Disclosure Law better then the Securities Commissioner?

It does not matter how Deborah ended up in arbitration, what happened when she got there tells the tale of how fair the process is.

Why didn't the AAA or the other panelists who think arbitration is fair have someone speak? Because it would have been big business.

Why is it that you are afraid for arbitration to be a choice? The pro arbitration advocates say that the public like it, so whats the deal?

[Fred]

"It does not matter how Deborah ended up in arbitration"

Complete rubbish. She had a chance to void the arbitration clause, she chose not to exercise it.

Then she goes before a Congressional subcommittee that's meeting about how bad "binding arbitration" is.

Hint: It's not binding if you had a chance to get out of it and chose not to exercise it.

"What happened when she got there tells the tale of how fair the process is."

Uh huh. I guess we should just blindly accept her story as 100% accurate, there's no chance at all that she's biased.

I prefer to go with the one undisputedly non-biased party, the District Court. Who rejected all of Deborah's claims as baseless. I guess you could argue that the District Court is biased, but that would undermine your bitching about arbitration.

Bottom line is, she signed up for a contract that she later didn't like, and lost her case. There is no indication that she would have fared better in court than arbitration, unless you believe her story. Which contradicts not only the Arbitrator but the District Court.

Here's a test: Go into a Civil court where there is a contract dispute. Ask the loser if they should have won. I'll be you get an answer like Deborah William's.

I think there could be some legislation that further regulates Arbitration, but the current bill is too much. That's why it won't pass. It's not like this is the first time this bill has been proposed. I don't think it's ever even made it out of committee, much less been put to a vote.

[Paul Bland]

Wow. I've heard about these "sock puppets," corporate-funded people who pretend to be actual consumers blogging, but who are presenting a Chamber-style position, but it's never happened with one of my blogs before.
Anyhow, the mysterious "Fred" here, makes some unintentionally hilarious comments in his classic blame-the-victim character attacks on Deborah Williams. (Hey, Fred, did you cut your teeth writing the balanced questions that Orrin Hatch tossed at Anita Hill?)
First, Fred says that when the Coffee Beanery said that no one could get a franchise with them without signing an arbitration clause, that wasn't "voluntary." ??? His explanation is that later on, IF someone was willing to drop their civil claims and accept a settlement of injunctive relief ("we promise not to cheat anyone in the future"), they could have gotten out of arbitration.
Second, Fred says that there's no reason to think Ms. Williams would have done better in Court. Let's think about this. A) The AAA billed Ms. Williams over $100,000 to bring her case in arbitration. Hey, Fred, why don't you tell us about the last time you heard a court charge anyone $100,000 to pay the judge, the bailiffs, etc.? Doesn't happen. Courts have modest filing fees, and then they're free. The $100,000 + filing fees Ms. Williams got slammed with are unique to arbitration, Fred. Go dig out the Chamber talking points about how arbitration is "cheaper" than Court, and I'm sure they'll be a huge consolation to peoople like Ms. Williams.
B) The arbitration took place 500 miles from her home. Hey, Fred, are you under the impression that plaintiffs inthe court system have to travel 500 miles to have their claims heard? Not in the U.S.
C) The arbitrator ignored the position of the Maryland AG that the CB had committed fraud. This is the arbitrator with a bunch of links to the CB. Fred, do you understand that in court, a judge with those kinds of links would have been recused? Fred, do you get that judges -- whose decisions are reviewable by appellate courts -- generally don't ignore state attorney general filings about fraud?
Sock Puppet Fred's game of "Blame the Victim," and "arbitration must be a great system because we can always Swift Boat anyone who speaks out against it," grows a little old.

[rose]

I have been looking into the story about the woman from the coffee beanery. I can't be the only one who heard her say that she was protected by Md. Law which both sides amended her contract to agree would govern the arbitration agreement.

Look at Md. Franchise Law and you will notice that a franchisee is given the right to file a case in any court they choose.

So how does "Fred" justify that Deborah was jerked half way across the country?

Fred explain how the arbitrator gets to decide that the FTC and Md. are wrong. This flies in the face of the law.

As far as being able to rescind and making the arbitration contract void, you are wrong again. You then have to prove that the arbitration contract was also induced by fraud.

You have much to learn.

Putting all of this aside, it does not matter how she got there. What matters is what happened after she got there.

Congressman Cannon made a point of trying to show how little information went into The Arbitration Trap report, but when Deborah was outside of that small little sliver, he tried to pull everyone off track of the subject, and make her the villian.

I guess I'm trying to figure out where all of those happy arbitrating cmapers were? They should have testified as to how happy they are with the results they got from arbitration.

As for statistics showing a decline of suits filed, that is a direct result of the fear of the loser pays all rule.

I think there has to be cause for alarm when we are arguing if people in this country should be given the choice of exercising a Constitutional Right.

If these contracts were to read "You must settle your disputes in court and are waiving your right to choose arbitration" the Supreme Court would be all over that. However, it is acceptable to sign away our Constitutional Rights.

An alarm also needs to sounded when this much hype is being stirred because a segment of the population see what is going on and only what to change binding mandatory arbitration into voluntary arbitration.

[Sal]

People criticize the inclusion of arbitration agreements in contracts, arguing there is truly no choice. But aren't these arguments a fundamental attack on how all business is done in this country? If arbitration agreements are to be held invalid because according to some, there is truly no choice, it seems like it would be impossible to enter into any contract in our modern society.

[Paul Bland]

Actually, Sam, that's not really true. A basic rule of contract law in every single jurisdiction in the United States, that dates back to the beginning of our country, is that legislatures can bar certain types of contracts. For example, there are no contracts allowed for the sale of slaves in the U.S. Similarly, employers can't make employees contract away their rights under the civil rights laws. Many states have laws that say, in effect, "if you're going to sell something and call it health insurance, it has to at least cover the following types of illnesses...." In the case of mandatory pre-dispute binding arbitration clauses, the consumer and civil rights argument has several facets: (a) many huge corporations require their customers and employees to submit all disputes to arbitration (and give up their constitutional rights) as a condition of getting goods and services or getting a job; (b) in many industries, ALL the companies do this, so consumers and employees either have to submit to arbitration or just not get the goods or services or not get the job; (c) in a great many cases, the arbitration clauses are a rigged deal where the consumer or employee is very unlikely to win, so that basic legal protections are lost.
There are lots of people (like the Chamber of Commerce) who would dispute part (c) above (I can't imagine that any honest person could dispute a or b), and that's where the real argument lies.
But if (a), (b) and (c) are right, then there isn't any serious argument that it would somehow violate freedom of contract or "the way business is done in this country" for the Congress to pass the Arbitration Fairness Act. There are all kinds of limits on abusive types of contracts -- the legal books are filled with hundreds of them, in every state, as well as the federal code -- and there is nothing new or unusual about striking them down.

[Jordan Fogal]

As long as these atrocious arbitration contracts are allowed to be in everything a consumer signs ...it gives them quite a choice... sign, give away your rights or do not have: a car, a credit card, a bank account,a home... nothing, not even a cell phone. All consumer rights are being destroyed. People have said ...well I just would tell the business I refuse to sign that contract with the arbitration clause in it...let them try it. Even if they are so rich they can pay cash for their house and car how are they going to get services. They can not apply for a cell phone with verizon... I know they told me no phone... sign or no phone. That was for a cash sale of the phone but they would not sell it to me or give me the service without my signing.

How will you travel without a credit card, you can not rent a car without a creidt card? A little due dilegence is due here to address what is fair and not fair. Are we citizens or have we become subjects.

I know for fact arbitration is a horrible excuse for justice. I have been forced against my will there twice. Arbitration is an atrocity and I do
not even know how many times big business can force you into the mess. Most of the contracts say past, present and future. People's lives are runined, they are cheated out of their money and homes and live in constant terror that they will continued to be preyed upon. It is the privatazation of the justice system and it is not cheaper, faster or fair. We wrote the checks to the demented collection agency, the AAA, we know how sick this process is.
If some one avoids a trial like my builder Tremont/Stature they have a good reason... they have admited their guilt.

As far a Rep Cannon is concerned he said, we did not even have a contract of adhesion...he said we did not have to buy a house we could have RENTED. So much for the American dream with this represenative. This is a prime example of a represenative who has lost touch with the outside world and exhibits distain for the people who elected him... the voters the consumers.

If arbitration is so wonderful... it would not have to be forced on us. It is not fair and it is forced. If you would like to read what this abomination of our legal system has done to our family please google my name. There are hundreds of thousands just like us.

Jordan Fogal
jfogal281@aol.com

[Jordan Fogal]

Articles on the housing debacle seem to purposely leave out, ignore and not mention some of the main reasons for the "sub prime crisis" . Reasons which led to the lenders' chaos. The banks, the hedge funds and the builders cry out for help like something out of Danes' inferno. All the while taking their bonus checks, of our hard money and stuffing them along side what they have already gleaned from us ...with their thrown up, defective housing. Now since the gravy train has derailed they cry out," help us we wanted more.".Yet the cries and wishes of the middle class go unheard.. It is doubly diabolical that we the tax payer should once again be forced to pay the perpetrators. The government thinks they should help the people who cheated and robbed us of our homes. We hear that consumer confidence is down, and the government seems to be baffled as to the why.. Greed, of course, is at the helm of this perfect storm, prefect for everyone except the once, homeowing tax payer.

The general population has been preyed upon by the greed of shoddy construction, and further destroyed by arbitration clauses which hide the builders role in this housing debacle. I am sickened by the articles on arbitration all written by people who have not endured this diabolical process.
My husband and I have been there. And it is not fair or cheaper, but some times you can get screwed a lot faster, they even have a name for it, it is called," fast track arbitration". As we are dragged behind these closed doors, many of us who are not silenced by gag orders,( carefully termed secrecy agreements) tell of the unbelievable goings on . Most of these so called secrecy agreements conveniently cover up what has occurred inside. Inside, where the rules of law no longer apply, where fraud and perjury are standard fare and the arbitrators turn a blind eye because of...greed. The big builder is their constant meal ticket. We the home owner will never financially recover to be subjected again to this incestuous farce. A farce that is touted as being so good for the consumer they made it mandatory. If in fact this privatization of the justice system is so wonderful why is it mandatory?
Arbitration is a sin against the constitution and the general public. One way to get us out of this crisis is to get the arbitration companies to pony up their unbelievable earnings... after all they tout them selves as non -profit facilitator. Non Profit? We know how much they profited off us.Then check the bank accounts of these lenders and builders and make me feel sorry for them. Sorry they have made only 3 million this year instead of the 25 million the year before. These insidous leaches have made millions off us. The builders and lenders are screaming now because their greed became so insasable they have driven this county into a recession. And once again we the people are screwed.
If you would like more on this crisis please google my name Jordan Fogal an read my testimony for the congressional hearing... on the effects of arbitration on the consumer. You may also go to HADD.com or HOBB.org and remember the home you save most likely will be your own.
jfogal281@aol.com