User:GregG/Attacks on arbitration

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Work in progress. Collecting links and quotes for future article on this subject.

  • [1]: "If you don't want to give up your right to personally sue them in a court of law and be forced into a kangaroo court overseen by a judge whose fees are paid for by the company you're suing, Cablevision will let you."
  • [2]
  • [3]
  • [4] -- misleading statement that "Arbiters are typically retired judges who fetch an hourly rate of $300 or more, a fee that's generally split between the two parties"
  • [5] -- "[Suing in small claims court] also doesn't require parties in the proceeding to keep their mouths shut after a decision is rendered, as arbitration does." -- which is false with respect to the AT&T Mobility agreement
  • [6] -- Consumerist again, citing the trial lawyer advocacy group Public Citizen and their report on post-Concepcion arbitration law
  • [7]
  • [8] -- "Arbitration, however, requires consumers to surrender their right to sue, and many consumer advocates say the process as used in financial products is biased toward banks." without further comment or elaboration.
  • [9] -- "an arbitration procedure in which there is not a judge or jury—but rather, a private arbitrator often chosen by the corporation being sued."
  • [10] -- another article which intones that the company chooses the arbitrator, also misstates that parties are generally required to keep results confidential
  • [11] -- "Generally speaking, businesses prefer arbitration because settlements are limited and because professional arbitrators, whose fees are typically paid by the company in a dispute, tend to favor businesses. It's a classic example of not biting the hand that feeds", also quotes without comment Public Citizen's dubious 94% figure
  • [12] -- "Of course, because Valve will be hiring the arbitrator in question, one can expect that the person dealing with disputes will not be completely impartial either"
  • [13]
  • [14] -- from Fox Business, which is flat out wrong about discovery in arbitration
  • [15] with respect to being able to recover from an AG action
  • [16] -- problems with arbitrator neutrality, ability to order injunctive relief, secrecy, etc. that are not reflected in the two agreements highlighted
  • [17] -- basically all the standard Public Citizen talking points, misconstrues Rent-a-Center West
  • [18] -- "Typically, the consumer has no say in who the provider or arbitrator is", also exaggerates the effect of loser-pays clauses in arbitration
  • [19]
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  • [23] -- let us enumerate the blatant lies:
    • "Consumers are also forced to pay steep filing fees just to initiate a case—seldom less than $750 – and pay their share of the arbitrator’s hourly charges, which are routinely $400 or more per hour."
    • "arbitration clauses often allow the corporation to choose the location, regardless of how inconvenient or costly travel will be for the consumer"
    • " most arbitration clauses require that proceedings be kept confidential"
  • [24] -- a pretty egregious article
  • [25] -- blatant lies such as "The catch is that the bank gets to pick the arbitrator, and the arbitrators naturally know they’ll never work in this town again if they ever rule against the banks", also cites Public Citizen's dubious 94% figure and mentions the NAF without disclosing that it has ceased new consumer arbitrations
  • [26] -- blatant lies, such as "Arbitration panels are overwhelmingly funded by big business. Thus, to assure they keep getting the work, arbitrators almost always rule in favor of the business. They understand that decisions against the business will result in their firms not being used again."
  • [27]
  • [28] -- a very uninformed letter to the editor
  • [29] -- falsely claims that filing and copying fees in arbitration for a $1,000 claim would be prohibitive
  • [30] -- falsely reports as fact that Sprint's July 2013 terms forbid representation by an attorney in arbitration, in contradiction to what Sprint says the actual effect of the provision is.
  • [31] -- derogatory statement: "Both [suing in small claims court and proceeding with arbitration] can be long, stressful and potentially expensive processes."
  • [32]
  • [33]
  • [34] -- "And the arbitrations that consumers must resort to if they have complaints? The corporations often select the arbitrators, limit investigation of the facts, and keep the whole process secret. Worse still, the average consumer or small merchant who dares to challenge Big Business is almost certain to give up if the cost of arbitration exceeds any possible recovery -- which is another way of saying that our laws against corporate abuse, such as the antitrust statutes, will simply go unenforced."
  • [35]
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  • [41] -- "Corporations pick and pay for arbitrators, which lets them stack the deck by selecting those who are friendly to their interests, [consumer advocates] charge."
  • [42] -- "you'll be limited to arbitration, handled often by a one-person judge and jury who is often selected by the business with whom you have a dispute. And you might have no choice", also cites a Public Citizen lawyer who said that arbitration suppresses small claims when in fact most arbitration clauses allow parties to proceed in small claims court instead
  • [43]
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  • [46] -- false statement reported as fact: "Many of those mandatory-arbitration clauses actually stipulate that the business gets to choose the arbitrator."
  • [47] -- "Suing a business in small-claims court is usually a last resort. Increasingly, companies are including arbitration clauses in their contracts, which may require that a dispute be taken to a third party for private review rather than to court—including small-claims court."--mostly false
  • [48] -- see #1, makes the unsubstantiated (and probably false) assertion that in arbitration, the "'resolution' is often a pittance compared to what a plaintiff would get in a lawsuit" (scare quotes in original), also falsely asserts bias in arbitration, as well as that consumers cannot pursue a case in arbitration pro se.
  • [49] -- multiple falsehoods and misrepresentations of arbitration:
    • "If you live in Florida and have a dispute with Paypal, you will have to travel to California – at your own expense – to have your dispute heard." This has not been the case with respect to Paypal since 2003.
    • "The corporation also gets to choose the arbitrator. The consumer rarely has any choice of who will hear the dispute, but even when a choice is offered, it is from a list chosen by the corporation."
    • "corporations often reserve the right to cancel an arbitration hearing and take the matter to court"
    • more throwing around a long-debunked NAF statistic
    • quotes Steven Law out of context to suggest hypocrisy with respect to enforcement of arbitration contracts, when Law was referring to proposed government-mandated arbitration between employers and unions
  • [50]
  • [51]
    • describes organizations like the AAA as "[p]roponents of forced arbitration"
    • suggests that consumers would not be able to pursue a claim pro se since the business would likely be represented by a lawyer
    • falsely claims (with respect to AAA arbitrations) that arbitrators do not have to follow the law and do not have to have legal training
  • [52], with our favorite mastermind behind the mainstream media attacks on arbitration, F. Paul Bland!
    • falsely suggests that arbitration agreements deprive consumers of rights under FDCPA and FCRA
    • Bland: "The arbitration system is essentially a corporate tribunal set up by companies"
    • Bland: "Arbitrators don't have to give any reasons (for their decisions)". This misrepresents the rules of AAA (explained decision available on request at no charge) and JAMS (explained decision required).
    • Perry is quoted as suggesting that businesses would retaliate if adverse decisions were issued "once or twice". A look through AAA and JAMS consumer disclosures indicate this is certainly not the case. Logically, such a threat doesn't make sense either, as the consumer caseload of AAA and JAMS arbitrators is a very small portion of the whole (which includes employment disputes, commercial disputes, and labor disputes).
    • Trots out win rate statistics; suggests that 99.9% win rate for debt collection claims in arbitration was too high, when, in fact, studies show that debt collection claims in court were won at about the same rate.
  • [53]
  • [54] -- "Arbitration favors repeat players. The repeat players are the businesses that put arbitration clauses in their contracts. An arbitrator who finds in favor of employees or consumers risks being black-balled."
  • [55] -- "Consumer advocacy groups such as the National Association of Consumer Advocates and Public Citizen say the forced arbitration clauses give companies immunity if they sell or provide substandard products or services, commit fraud, violate consumer protection laws or fail to do what they promised." -- although the article attributes the viewpoint to NACA and Public Citizen, it's clear that the author also subscribes to that viewpoint, especially since no contrary perspective is provided.
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  • [70] -- Consumerist, again, states that an arbitration clause is "a clause in many consumer contracts that forces you to give up your right to sue in small claims court and have all disputes resolved by a professional arbitration firm that gets paid directly by the companies," when, in fact, the clause discussed preserves the right to proceed in small claims court.
  • [71] -- poll featuring a loaded question: "Those who said they approve of, or were not sure about binding arbitration were presented the three following facts: [] The arbitrator who decides the outcome of the dispute will be selected by the company[;] The consumer may never take legal action against the company over the dispute[;] Binding arbitration applies even in cases where the consumer has been seriously injured by the product or service"
  • [72]
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  • [75]
    • "When we buy a phone or download a song, we have probably unwittingly waived our right to use the civil justice system to hold the seller accountable." The author provides no empirical support for this proposition or the usage of the word "probably".
    • a boilerplate contract is "composed of eight pages of impenetrable language in a font measured in micrometers" -- making a false insinuation
    • "As a result, the courts have enforced arbitration agreement after arbitration agreement, no matter how drastic or unfair and corporations have become increasingly emboldened." False, see Chavarria v. Ralphs Grocery Co., 733 F.3d 916 (9th Cir. 2013)
    • "The New York Times reported recently that General Mills had added language to its website to alert customers that by using its website to request a coupon or even by 'liking' something on its Facebook page, they are agreeing to resolve any disputes using 'informal negotiation via e-mail' or arbitration. After being contacted by a reporter, the Times reported, the company added language that suggested that simply buying a General Mills product would bind a consumer to those terms." The paragraph fails to mention that General Mills never considered purchasing a General Mills product or liking its Facebook page to constitute assent.
    • "Many pre-dispute arbitration agreements replace a jury of one’s peers with a single arbitrator that works for a company chosen by the defendant corporation and is arguably beholden to that corporation for future business." Arbitrators serve as independent contractors for neutral arbitration administrators. Further, in AAA and JAMS, consumer cases are a small fraction of the caseload (the big cases are business-to-business disputes and employment disputes), so it is highly improbable that an arbitrator would deliberately bias himself or herself in favor of a business in a consumer arbitration in the hope of further cases.
    • "Non-party discovery is non-existent, and the injured party has to share the fees of the arbitrator" 9 USC 7 provides for third party testimony at a hearing, and the Second Circuit has upheld preliminary "hearings" for the purpose of receiving testimony from third parties prior to the main hearing on the merits. See Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567 (2nd Cir. 2005). Also, under AAA and JAMS rules, the arbitrator's fees are paid entirely by the business unless the consumer volunteers to pay a portion of the fees.
  • [76]
  • [77]
    • asserted that General Mills's short-lived arbitration policy would have been assented to by liking a Facebook page, which has been repeatedly debunked
    • "punitive damages are not allowed in arbitration — although they are allowed as monetary penalties in state and federal consumer protection laws meant to deter companies from violating them." -- this is blatantly false
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