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VERY shady conduct by Experian with its "BOOST" product as the bait

7/27/2022

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A fellow consumer lawyer does a great job exploding how Experian is setting traps for consumers to trick you out of your rights. 

The whole thing is really worth your time to read:

https://goldsonlawoffice.com/consumer-protection/how-experian-tricks-people-into-signing-away-their-rights/

If you are having trouble sleeping one night but don’t mind a possible nightmare of being crushed by a multi-billion dollar corporation, you can read Experian’s Terms of Use Agreement here:
 https://www.experian.com/help/terms-and-conditions.html

So to reiterate – if you have a problem with Experian, you would have to air your grievances in arbitration, not any court. If you are not familiar with arbitration, you can think of it as a fake court that has been found to be very unfair in favor of businesses (who pay them). If you’re interested, you can learn more about how unfair forced arbitration is here https://www.consumeradvocates.org/for-consumers/arbitration/ or here
https://www.citizen.org/article/mandatory-arbitration-clauses-are-discriminatory-and-unfair/

This should beg the questions: Why is Experian so worried about you suing them in court? Why are they so worried about class actions? And wait… are they luring you to click through this “agreement” with the promise of a higher credit score? Yes, they are. In exchange for a higher credit score, you have to promise to never sue them in court.

And if you’re wondering whether Experian ever goes so far as to enforce their forced arbitration clauses; yes, they do . . .
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Venmo Users: Don't Sleep on This - Don't Give Up Your Rights to Use Class Actions

4/26/2022

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Very helpful article from The Verge below with step-by-step directions on how to avoid getting jobbed out of your right to join a class action against Venmo (which is, in practical terms, probably the only way you'd ever be able to have a hope of dealing with a problem with them that they won't fix for you).

Excellent deeper analysis of how Venmo is hoping you won't bother so they've made the process absurd, from the Credit Slips blog.
How to opt out of Venmo’s new arbitration clause

Keep your rights to class action

By Barbara Krasnoff  Apr 25, 2022, 2:52pm EDT

. . .  We’ll tell you how you can opt out — but first, a little info about arbitration clauses.
Arbitration clauses have become extremely popular in agreements between companies and consumers. (For example, here’s a 2019 article explaining how to opt out of the arbitration clause that emerged when Apple added a credit card.)

It’s not surprising. When you agree to arbitration, you are basically putting most of the advantages in the company’s court.

For example, most arbitration clauses deny you the opportunity to become part of a class action suit or to individually sue the company. Instead, an arbitrator (often chosen by the company) reviews the case and then makes a ruling that cannot be appealed.



MOST ARBITRATION CLAUSES DENY YOU THE OPPORTUNITY TO BECOME PART OF A CLASS ACTION SUIT

And, in fact, this is exactly what the arbitration clause that Venmo is adding is meant to do.

. . .


here’s the short version of what you need to do:

  • Download and print out the Venmo Opt-Out Notice Form
  • Fill out the entire form
  • Mail it (yes, the kind of mail with an envelope and a stamp) to:
PayPal, Inc.
Attn: Litigation Department
Re: Venmo Opt-Out Notice
2211 North First Street
San Jose, CA 95131



1) .... if you accepted the user agreement for the first time on or after May 23rd, 2022, then your form has to be postmarked up to 30 days after that date.

If you’ve been a Venmo member for longer, you have until June 22nd, 2022.


2) ... Send it so it can be traced or, even better, so somebody has to sign for it.

This will cost more, but if you foresee yourself possibly needing to take Venmo to court anytime in the future (especially if you plan to use the service extensively), then it pays to be sure.


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Corporate Pro-Forced-Arbitration Lobbyist Tries Selling Chicken S--t as Chicken Salad

8/10/2021

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The US Chamber of Commerce and other corporate power groups are terrified of the 7th Amendment to the Bill of Rights (right to jury trial) and the "FAIR" act, which would prevent them from forcing consumer and employee disputes into the lawless land of private arbitration controlled by and very favorable to, you guessed it, those same corporate power groups.

The American Prospect has a great story about an effort by these folks to disguise a corporate lobbyist-written editorial as an one written by a real consumer -- and an offer to pay a consumer attorney a $2,000 bribe if he would help find a consumer to put his name on the already-written editorial.

https://prospect.org/power/corporate-lobbyists-seek-grassroots-support-forced-arbitration/
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The Truth About Forced Arbitration -- the real story emerges from data from the arbitration companies themselves

9/10/2019

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Forced arbitration is a rigged system designed by corporations in which injured workers and consumers have no meaningful chance of finding justice.

Forced arbitration requires Americans to “agree” to surrender fundamental constitutional rights – often without ever realizing they’ve done so.

When corporations harm workers and consumers by cheating, stealing, or even breaking the law, cases that should be heard by a judge or jury are instead funneled into a secret system controlled by the wrongdoers in which there is no right to go to court, no right to a jury, no right to a written record, no right to discovery, no transparency, no legal precedents to follow, no opportunity for group actions when it would be too difficult or costly to file a claim alone, no guarantee of an adjudicator with legal expertise, no transparency, and no meaningful judicial review. Without such checks and balances, the deck is stacked heavily against workers, patients, and consumers, and systemic misconduct is allowed to continue in secret.


Forced arbitration’s proponents counter that the process is faster, fairer, and better for workers and consumers than going to court. However, this comprehensive analysis of the self-reported data provided by the arbitration organizations makes clear that forced arbitration is not an alternative judicial process, but instead eliminates claims, immunizes corporations, and allows abuse, discrimination, fraud, and essentially all other corporate wrongdoing to go unchecked.

Americans are more likely to be struck by lightning than they are to win a monetary award in forced arbitration.

Click on the image to get a copy of the full report or download it here.



forced-arbitration-2019-final.pdf
File Size: 1743 kb
File Type: pdf
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Wells Fargo tries to send Innocent Pastor to Jail, Then Insists Pastor Should be Forced to Arbitrate Claims Against Wells Fargo

9/2/2019

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  If there was ever a case that showed exactly how forced arbitration encourages and promotes corporate misconduct and arrogance, this is it.  A pastor wrongly accused of theft because of Wells Fargo's screwup simply asks for an explanation and for Wells to pay his legal fees, fees he was forced to incur solely because of Wells and its screwup.

Wells tells him to go fly a kite, "apologizing" but refusing to cover his legal bills.  And now Wells is trying to hide the case behind the stone wall of forced arbitration, where the judge of the case (the private arbitrator) is literally on Wells Fargo's payroll.

Starting in the 1970s, a series of radical decisions by the US Supreme Court tossed out the 70 years of precedent barring forced arbitration in employment and consumer cases. Since then, we've seen the entire civil justice system in America has essentially been gutted by these forced arbitration clauses in consumer and employment cases. Corporations use these clauses to cover up when they lie, cheat and steal, and arbitration protects outrageous criminal conduct by corporations by keeping others harmed in the same ways of having any ability to even know that others are fighting the same fight.

Forced arbitration is the end of any concept of Equal Justice Under Law in America, and its use is a huge part of the reason that while most Americans are struggling to keep up, the richest of the rich are becoming even richer without bounds.




Wells Fargo pushes wrongly accused N.J. pastor toward arbitration

         A New Jersey pastor who was falsely arrested because of errors made by Wells Fargo employees may be forced to resolve legal claims against the bank in arbitration, renewing questions about banks' use of the process.
 . . .

Edwards deposited four checks in an ATM one afternoon in April 2018. Later, a photo of Edwards depositing his checks was falsely linked to a series of fraudulent checks deposited in the same machine on the same day. The photo of Edwards was posted on a New Jersey State Police Facebook page, prompting one of his parishioners to point him to the page, telling him he had a twin. The actual owner of the account into which the fraudulent checks were deposited was a 20-year-old woman.

The bank later admitted it was at fault and offered an apology. Edwards asked the bank to explain what happened and pay his legal fees; the bank refused.

...
For his part, Edwards is angry the bank is now trying to take the case to arbitration.
“It's a frustrating sense of not being able to get justice and having it all postponed,” Edwards said in an interview. “They threatened my reputation and put me through a great deal of angst and anxiety about the threat and the uncertainty of where this all was headed. So I would like some compensation for that. I would like an explanation for how they could have allowed this to happen. And then there’s the fact that they made a mistake initially and they seemed to just double down when they were asked about the mistake. There should have been ample reason to call into question their initial discernment that I was the person who cashed the fraudulent checks.”

Edwards also said he worries that this could happen to someone who doesn't have the means to hire a lawyer or who has a criminal record.

“In my experience dealing with the state police, I was pressured to confess to something I did not do,” Edwards said. “I can easily imagine how someone would cave in to that, if they did not have my advantages.”
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Don't Let Chase force you into arbitration if you have a dispute with them!

7/12/2019

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A reporter for Kiplinger wrote a good article on arbitration and avoiding it in July 2019 -- available online:

https://www.kiplinger.com/article/credit/T016-C000-S002-how-to-opt-out-of-forced-arbitration.html


Remember, you have to act fast (by early August) and send Chase a regular, signed, snail-mail letter to keep them from forcing you out of court and into forced arbitration on many of their credit cards:

From the Kiplinger story:

Write a clear statement rejecting the arbitration agreement, and request a letter of acknowledgment from Chase. Include your name, account number, address and signature, too.

Send the letter by certified mail (so that you can prove Chase received it) to P.O. Box 15298, Wilmington, DE 19850-5298.

Customers who open a Chase card after the deadline can decline the arbitration clause, too.


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Forced Arbitration: A Race To The Bottom

8/20/2018

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nela-institute-report_forced-arbitration_a-race-to-the-bottom.pdf
File Size: 899 kb
File Type: pdf
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Building on our earlier Institute report by Prof. Imre Szalai of the Loyola College of Law, Forced Arbitration: A Race To The Bottom breaks down the “what, how, & why” of forced arbitration and reveals that at least 52 Fortune 100 companies use forced arbitration in their employment contracts. Of those, 30 also ban employees from joining any class, collective, or joint legal actions when wronged in the workplace—a number that is likely to increase in the wake of the U.S. Supreme Court’s recent decision in Epic Systems v. Lewis. The report also explores some of the state and federal legislative solutions that potentially are available to protect workers from this harmful practice.

By identifying which of America’s most powerful companies have imposed arbitration on employees, this report makes a unique and essential contribution to the public’s understanding of the magnitude of the threat forced arbitration poses to America’s workers.

(Download full report by clicking link to the left)

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Three inspiring reminders in three minutes: Sometimes justice prevails, forced arbitration is a system for letting fraudsters hide their crimes, and class actions offer real benefits to people like you and your neighbors

7/30/2018

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From Paul Bland of Public Justice:

There are a couple of things about this case, as explained in the video, that are striking. 

First, the corporate behavior – a payday lender misleading customers, getting them into a cycle of debt, lying about its nature, abusing the law – is truly ugly. Nearly every American should hate this kind of behavior, and see why it’s important for the legal system to address it.

Second, the video explains how the civil justice system, and class actions, got real justice for the consumers: tens of millions of dollars in refunds to consumers, illegal debts wiped away, and peoples’ credit records fixed. 

Third, the video focuses a great deal on Mr. Inetianbor, showing that the class action wasn’t just a lawyer-driven thing, but that the consumer played a huge role in protecting other consumers and working to fight this problem.

Finally, the video helps explain how vile a system forced arbitration is, and why the defendants’ efforts to use forced arbitration were a real scam.
 

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Local Media REALITY CHECK -- great piece about forced arbitration

9/1/2014

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WOW.  This FOX affiliate's "Reality Check" is an amazingly good piece of local TV journalism. WELL WORTH A WATCH.

Please share the video at the link with as many people as you can. Until everyday people realize just how badly the justice system has been privatized, corrupted, and turned against us, the real people, businesses will keep getting away with using arbitration to cover up their crimes and they will continue pouring money into campaigns to lock in their unfair dispute resolution scheme, where they get to use the power of the courts against you, but not the other way around.

Popular outrage is the only antidote. We have to start defeating any candidate for federal office who won't make fixing this mess a top priority.
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Federal judge appointed by GW Bush notes Emperor Arbitration's Nakedness

8/14/2014

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"In a decision just two days ago, a federal judge appointed by George W. Bush felt compelled by U.S. Supreme Court decisions to enforce an arbitration clause even though the judge noted that

   (a) the court did not believe that the plaintiffs ever believed they were signing away their right to bring a lawsuit;

   (b) enforcing the clause would “undermine effective enforcement of federal antitrust laws”; and

   (c) enforcing the clause after the defendant first had decided to litigate in court was “inefficient and wasteful.” 

The court concluded that in this area of law, “common sense plays no role.”
 
Here’s a blog post about the case, with link to the decision:
 
http://bit.ly/1pPBFJP
 
This is a true poster child of arbitration abuse, really highlighting just how unfair the law has gotten under the current U.S. Supreme Court’s decisions.  If people will read this decision, they may well get a sense of just how out of whack the law has gotten in this area."
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Something right happened in DC for a change

8/11/2014

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Emily Bazelon's explanation of a recent Obama executive order is posted on Slate.
One expert put it this way:

    "This is as clear and well-written an explanation as we're going to see of President Obama's Executive Order saying that corporations can't get federal contracts if they force their workers to submit to forced arbitration of civil rights claims. Emily Bazelon, a very widely read blogger, has done a terrific job of putting the executive order into context and explaining why it is so important.

    "If there is one piece that everyone should read to understand this issue, this is it. If you have friends who don't understand why forced arbitration is a problem or don't realize that President Obama has actually done something really important, this is the best story I've seen to set it all out."
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Arbitration clauses hurt you when you're investing too

7/15/2014

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Private binding arbitration clauses don't just screw consumers and employees. They also hurt investors -- including the people who just have their pension and retirement savings in 401(k) plans or other retirement savings plans -- because private binding arbitration is how corporate managers prevent anyone from knowing how badly they are screwing up and mistreating people (customers, employees), which creates huge liabilities.  If you're an investor, you should tell your companies to stop giving management cover for wasting investors' money -- tell them to stop using private binding arbitration clauses, so that you have a way to keep an eye on your money.

"Think about it. If American Apparel and Mr. Charney had been subject to public lawsuits, how long could have Mr. Charney lasted?"
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Good local TV news expose on how arbitration clauses hurt real people

5/9/2014

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A refreshing change of pace, a local news story that delves into the dirty background of how corporations use arbitration clauses to screw regular people.

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Just when you think the corporate drive to avoid having to answer for wrongdoing can't get more insane or over the top

4/17/2014

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When I first read about this, I was certain that I was reading a sly parody from "The Onion" or some other satirical publication. But then I found that the jokers behind this are deadly serious about it. In other words, General Mills has decided to promote itself to General LeMay and bomb the Constitution and your rights as an American to little super-sugarsaturated bits.

General Mills has granted itself a license to break the law. The owner of grocery staples including Trix, Cheerios, Betty Crocker, and Pillsbury, has quietly updated its terms of service to include a forced arbitration clause that eliminates its customers’ rights.

This means if you get salmonella poisoning from your Cinnamon Toast Crunch, you will not be able to hold General Mills accountable in court, and if you are cut by Old El Paso salsa that contains chunks of glass, your access to justice is denied. And yes, these were real things that happened last year!

Forced arbitration clauses allow corporations like General Mills to kick customers out of court and funnel them into an un-American dispute mill that is rigged, secretive and final -- and that denies you ANY ability to appeal, no matter how abusive the process.

If General Mills is not accountable, their customers are not safe.

Take action now! Write to Congress to urge them to protect their constituents from the abusive practice of forced arbitration!


And because we aim to help consumers around here, here's a helpful list of products you will want to avoid if you value your Constitutional rights as an American:

  • Betty Crocker
  • Good Earth
  • Muir Glen
  • Big G Cereals
  • Green Giant
  • Nature Valley
  • Bisquick
  • Haagen-Dazs
  • Old El Paso
  • Bugles
  • Hamburger Helper
  • Pillsbury
  • Cascadian Farm
  • Jus-Rol
  • Pillsbury Atta
  • Cheerios
  • Kix
  • Progresso
  • Chex
  • Knack & Back
  • Total
  • Cinnamon Toast Crunch
  • La Saltena
  • Totino's/Jeno's
  • Diablitos Underwood
  • Larabar
  • Trix
  • Fiber One
  • Latina
  • V. Pearl
  • Food Should Taste Good
  • Liberte
  • Wanchai Ferry
  • Frescarini
  • Lucky Charms
  • Wheaties
  • Fruit Snacks
  • Macaroni Grill
  • Yoplait
  • Gardetto's
  • Monsters
  • Yoplait France
  • Gold Medal
  • Mountain High

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Finally a story that might get people's attention to help explain how and why mandatory arbitration = abomination when used against consumers and employees

4/8/2014

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It's hard to get people to understand how they're being robbed and denied their rights when it happens without guns or violence. 

But a lot of times, companies rip off customers and exploit their workers unfairly, and it's not until you try to do something about it that you find out that the company has built itself an "Accountability Shield" that does to the civil justice system what Kryptonite does to Superman -- allows the bad guys to escape the consequences of their wrongdoing, and leaves the good guys weakened or flat-out defeated.

Every story needs a hook to get and hold the reader's attention long enough for the message to be received.  For a lot of guys, a story about hot young women being mistreated by their employer is a strong enough signal to get their attention, and then they can finally get the message. And, of course, young women, who are often mistreated horribly in the workplace, can understand that even the most superficially exciting jobs can really be terrible grinds -- made much worse by the arbitration clause that essentially lets the company get away with anything short of murder
.



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Historian shows how our "textualist" Supreme Court happily throws the Constitutional text overboard to serve corporate "citizens" and steal the 7th Amendment Right to Jury Trial from real citizens

3/31/2014

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By Paul Bland:

http://publicjustice.net/blog/important-new-book-proves-federal-arbitration-act-badly-distorted-by-supreme-court
 
This post examines a recently published book by an extraordinary law professor, Imre Szalai, who has gone back through the papers of the three men who drafted and lobbied for and pushed the Federal Arbitration Act.  In painstaking historical detail, reviewing all sorts of primary materials, he establishes convincingly that the FAA was never intended to (a) apply to employment contracts at all; or (b) apply to take-it-or-leave-it contracts.  This book is an important development in the historical scholarship on the Act, and demonstrates conclusively that the FAA has been distorted and mis-shaped by the U.S. Supreme Court in recent decades.  The Act now covers millions of people and transactions that it was never intended to address.

The advocates of forced arbitration are literally on the wrong side of history – the Court’s decisions fly in the face of what the authors and supporters of this statute had intended.
 
Paul Bland
Senior Attorney, Public Justice
Of Counsel, Chavez & Gertler
On Twitter @PblandBland



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Don't let Dropbox delete your 7th Amendment right to a jury of your peers!

2/21/2014

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If you want to avoid having your 7th Amendment rights taken away by a corporation,
you’ll want to opt-out of Dropbox’s attempt to unilaterally impose arbitration on you:

The link is here - all you need to enter is your name by March 20:
https://www.dropbox.com/arbitration_optout
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Great Editorial on Arbitration

1/22/2014

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Tremendous editorial by the SF Chronicle. 

A real breath of fresh air and truthtelling about the chains that pre-dispute arbitration clauses create.  Funny, businesses love to spin about how great arbitration is, but they don't want you to be able to choose or decline it.

What is it that they know that makes them think that, if you have a choice, you won't choose arbitration?

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Arbitration clauses:  How "care" facilities can get away with elder abuse

9/11/2013

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Sep11
Vulnerable Nursing Home Patients Need Ability to Sue in Court as Government Agencies Fail to Protect Them
By Leslie Bailey, Staff Attorney, Public Justice

According to a new report just released by the Center for Investigative Reporting and reported by KQED, the failure of California regulators to adequately investigate and pursue claims of abuse and misconduct by nursing assistants and health aids is “putting the elderly, sick, and disabled at risk.” In fact, the regulators that are charged with protecting vulnerable patients in nursing homes and assisted living facilities are either conducting “cursory and indifferent” investigations, or simply closing cases without taking any action at all. The report underscores how critically important it is for people to have the ability to sue when loved ones are harmed by nursing home neglect—or worse.

Take Elsie Fossum. One morning in July 2006, the 95-year-old was found lying in a pool of blood, her arm broken and her face described by the registered nurse in charge at the nursing home as “beaten to a pulp.” Within a few weeks, Elsie died as a result of the wounds she’d suffered. A nurse suspected one of the nursing assistants, and a report was filed with the Department of Health. But according to KQED, the agency shelved the case for 6 ½ years and finally closed it without any investigation. 

The CIR report paints a grim picture. There are approximately 160,000 nursing assistants and in-home health aids working at hospitals, nursing homes, and mental health facilities throughout California. As of 2009, the backlog of reported abuse and theft cases was so high that is was deemed a “crisis.” But rather than prioritize investigating, according to the report, “the state Department of Public Health quietly ordered investigators to dismiss 1,000 pending cases … often without a single phone call.” While the number of cases closed without action is on the rise, the main tool by which the agency is supposed to protect patients from abuse—revoking the licenses of nursing home employees—has plummeted in recent years. In other words, the abusers are permitted to continue working at their jobs, where they can continue to commit more horrific abuse. It’s gotten so bad that even a former Public Health director warns Californians: “do not count on the government taking care of you.” 

Fortunately, we have the civil justice system, and anyone whose loved one is abused in a nursing home can file a lawsuit – right? Think again. As the Wall Street Journal reported, nursing homes—like pretty much all other businesses—are increasingly jumping on the forced arbitration bandwagon.  That is, they’re requiring everyone who checks in to sign a contract forfeiting their constitutional right to sue. Instead, per the fine print, any claims against the home or its employees must be brought in private arbitration, in a secret proceeding before a hired gun chosen by the nursing home. But of course, the last thing on your mind when you’re in the painful process of admitting an elderly parent to a home is the fine print of the nursing home’s multi-page contract. The nursing home, of course, knows exactly what it’s doing: a study done by the nursing home industry itself found that as arbitration has increasingly replaced court as the forum for dispute resolution, the amount of money recovered by abuse victims and their families has decreased—even as complaints about poor treatment have risen.  

If the government agencies charged with protecting our loved ones aren’t up to the task, then the only way to prevent more horrific abuses like that of Elsie Fossum is through private litigation. But the nursing homes know this, and they’re doing everything they can to use forced arbitration to exempt themselves from lawsuits. It’s time to fight back.

If you are facing an arbitration clause in a nursing home case, we can help. Email Leslie at [email protected] or Paul Bland at [email protected]

For more information, you can also read our article, "Combating Abusive Arbitration Clauses in Nursing Home Contracts."


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That's Some Catch, That Catch-22

9/4/2013

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Once upon a time, there was a country where the courts could tell the difference between business-to-business disputes and consumer-to-business disputes.

     The law for the commercial disputes values efficiency above all other concerns, which makes a lot of sense for disputes involving businesses, which are often fictitious entities anyway (corporations), with no personal stake in the problems. 
      Further, being fictitious legal persons, entirely created under the law and having no natural rights of their own, the corporations involved in most business litigation could hardly claim to fall under the 7th Amendment right to a jury trial -- the companies only had the rights that the law gave them, and since they essentially all just wanted their disputes resolved in a predictable, roughly fair way, it was no problem that Congress said that they could bind each other to arbitration clauses, which sent their fights out of the court system and into private arbitration, where there are no juries, and there is no open court system that creates precedent with each decision.

     The problem is that, as in the Terminator movies, the creatures we created to help us have turned on us and taken over: the corporations have seized control of the courts and have persuaded a majority of the U.S. Supreme Court justices that, not only are they actually entitled to full constitutional liberties, including full First Amendment rights to "speak," they also should be allowed to force real people into arbitration, meaning that when you sue one of these fictitious people, you find yourself in a topsy-turvy world that Joseph Heller, author of Catch-22, could not have imagined on his most cynical day.

     We've been heading towards this mess ever since the first decisions in the late 19th Century that perverted the 14th Amendment, turning it from an aid to freed slaves into a weapon for the just-forming multinational corporations.  The recent "Citizens United" decision -- a fantastic act of historic judicial activism, with the Supreme Court majority going completely outside the bounds of the case before it to create a new superclass of corporate citizens (all the rights of people but none of the duties) is the best known of the long train of absurd decisions that, one by one, are turning real people into servants of the new superclass.

     Which brings us to today's fantastic absurdity, where the federal 2nd Circuit, the appellate court for the Northeast, the second-highest court in all the land (and a leading court for commercial disputes), has held that a New York consumer -- that is, a flesh and blood person like you, one who might be under the vague impression that your Constitutional rights are at least as important as the "rights" of a legal fiction like a corporation -- must go to binding arbitration in Arizona to pursue the scoundrels who ripped off the consumer and essentially reduced the consumer to abject poverty (the company was one of the many (most?) bogus credit repair companies who promise to help you climb OUT of the hole with your credit cards).

   There is no way to put it except to say that this is the kind of thing that terrifies people who study history, because this is the kind of thing that survivors study when they try to figure out "What was the spark that caused the explosion?  How did what seemed to be a civilized place suddenly erupt in such fury?"

    I would love to be wrong about this, but since the DNA of corporations requires that they grab all the power and money that they can, and that they do everything that they can get away with (to compete with all the others), expecting corporations to restrain themselves and not abuse consumers and real people is like expecting Donald Trump to take and keep a vow of silence and poverty.  Thus, absent a miracle -- never the thing to bet on -- this isn't likely to get better.  And that means we might well be getting close to finding out something awful, like what the 21st Century American equivalent is for 19th Century France's guillotine.
   Read on:




  • Today’s Arbitration Outrage: Second Circuit Says Destitute New York Resident Consumer Must Arbitrate Case in Arizona Leave a comment By Paul Bland, Senior Attorney @PblandBland
  • Periodically, people ask me rhetorical questions like, "How much worse can the law of arbitration get? I mean, it's so incredibly bad that it has to have bottomed out, right?"
  • As Jane Wagner famously wrote [for Lily Tomlin], no matter how cynical you become, it's never enough to keep up.
  • The Second Circuit has just issued an opinion that reminds us that it is still possible for the law of arbitration to become even more terrible for consumers. In Duran v. The J. Hass Group, a woman who is essentially on the edge of being destitute alleges (very credibly) that she was the victim of a last-dollar scam, promised services that she didn't receive.
  • The defendants allegedly operated a credit repair scheme, under which they took a fee of almost $4,000 from the consumer to settle all of her credit card debt, and then did nothing for her. So her credit card companies were suing her, she owed all the money that she’d owed when she first interacted with the defendants, and she was now completely broke. These allegations make an extremely strong claim under the Credit Reporting Act. The allegations and facts are discussed in greater detail in the district court’s opinion, available at 2012 WL 3233818 (E.D.N.Y. June 8, 2012).
  • It probably will not surprise anyone who follows consumer law (although it would come as a surprise to nearly any actual consumer) that the defendant had an arbitration clause. What's striking is that the clause requires consumers (including the New York resident Ms. Duran) to arbitrate their claims across the country IN ARIZONA.  Now, courts have been striking down these kinds of distant forum provisions in decisions going back 20 years.  E.g., Patterson v. ITT Consumer Fin. Corp., 18 Cal. Rptr. 2d 563 (1993). But in the wake of more recent U.S. Supreme Court decisions, particularly the catastrophic Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), a lot of bad actors out there have been experimenting with how unfair they can make their arbitration clauses and get away with it.
  • This strategy worked pretty well for the defendants in this case. The Second Circuit required Ms. Duran to arbitrate her claim, and enforced the provision requiring it to take place in Arizona. They noted that there is a "logical flaw" and an "unusual" quality to the result, because if Ms. Duran's only remedy is to argue to the arbitrator that it's unfair and unconscionable to require her to arbitrate in Arizona, she first has to GO to Arizona to do it. Oh well, the Court explains, this is what the Supreme Court would have wanted.
  • I think the decision is wrong, and that the better arguments are with the plaintiffs, and I'm very hopeful that a lot of other courts wouldn't go with this conclusion. 
  • But the case does show how the U.S. Supreme Court's ongoing adventures in re-writing and expanding the Federal Arbitration Act have a cost. What will the next scam artist put in their arbitration clause? Is there any reason that the Second Circuit would not have enforced a clause requiring the arbitration to take place in New Zealand on Leap Day? After all, why couldn't the New Zealand arbitrator figure out if that's fair?  What if the arbitration clause required that the arbitration take place on the newly non-planet Pluto?
  • If bad actors can get away with making arbitration clauses increasingly grossly unfair, and all the courts just wash their hands, do a Pontius Pilate, and say “well, this may SEEM really unfair, but oh well, it’s what the Supreme Court would have wanted,” mandatory arbitration will have no conceivable claim to any sort of legitimacy. It will become a complete joke, an openly rigged deal. 
  • Because saying that a poor person in New York can only get a refund of money stolen from her if she travels across the United States to begin the process of trying to get it back IS a joke, and it IS a rigged deal.
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Arbitration Purgatory

5/21/2013

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Great story in an intriguing San Diego nonprofit news outlet called "Justice for Sale: Arbitration Purgatory." 

The story is about what happens when you try holding a car dealer accountable.  Thanks to the US Supreme Corp's love affair with arbitration -- the dispute resolution method intended for parties in parity with each other, and typically for those who need to keep dealing with each other -- consumers increasingly find that they have signed away their constitutional right to a civil trial.  When you get ripped off by a big company these days, most often you will find that they have locked you into an arbitration agreement where they not only get to keep you from having the dispute heard by a jury of your peers, they also get to choose the forum.  And since the big companies are the only repeat players in the game, guess who the arbitrators (who are themselves totally unaccountable to you) worry about pleasing?  Hint: It's not you. 

Part 2: Justice for Sale:  Ignoring the Law

Part 3:  Justice for Sale:  The War on Consumer Class Actions


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