NYT: Forced Arbitration is ‘Stacking the Deck’ Against Us

Scartelli Olszewski P.C.

A three-part series in The New York Times details the increasing use of forced arbitration clauses in terms of service agreements with some of the country’s largest companies, from eBay to Netflix to Starbucks.What would it take for you to sign away your First Amendment right to free speech? How about your Fourth Amendment right to protection from unreasonable search and seizure by the government?Would you do it in exchange for a new credit card? No? What about a new cell phone? Cable TV?We certainly hope you wouldn’t, because those are important rights that lie at the foundation of your citizenship and of our country’s legal system. You may not realize, however, that if you’ve signed up for any of those services, or rented a car, shopped online, or applied for a job, you may unwittingly have signed away some other very important constitutional rights: the Seventh Amendment rights that guarantee you access to the civil justice system.That is exactly what is happening in a new business practice that is spreading like a cancer – a business practice that an investigation published this week by the New York Times concludes “stacks the deck” against private citizens while enabling big businesses to circumvent the courts.“Forced arbitration is a corporate bullying tactic designed to kick people out of court and eliminate their right to seek justice. It’s a rigged system set up by corporations to favor corporations,” said Linda Lipsen, head of the American Association for Justice.

Beware the fine print

You may not hear about the Seventh Amendment very often, but the rights it guarantees are pretty important. As a refresher, here’s what the Seventh Amendment says:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.That constitutional language is the basis of your right to a trial by jury (and also of your protection from “double jeopardy,” should you be tried on criminal charges and found not guilty).And yet, big companies in a wide range of consumer businesses across the United States have recently developed a disturbing habit: if you’re going to do business with them, you must agree to waive your Seventh Amendment rights. The language is buried in the fine print, often near the very end, of those “Terms of Service” agreements that nearly everyone simply clicks through online without even reading.If something goes wrong, however, the consequences can be disastrous.

Business is ‘opting out of the legal system altogether’

If you end up in a dispute with a company, private school, nursing home, or any other institution that employs one of these agreements that enshrine corporate bullying, you don’t get access to the American civil court system. You get a private arbitrator. Though these arbitrators are purportedly “neutral,” they are nearly always selected, and mostly paid, by the party that required the arbitration in the first place – the company.So you get a private arbitrator, who may not have ever even been a lawyer, much less a judge, and you lose your constitutionally guaranteed access to the civil court system. That is the point, as the three-part investigation published by the New York Times on Oct. 31, Nov. 1 and Nov. 2 reveals.“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, told the New York Times. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”That is, of course, exactly what they’re doing.”Big businesses are using fine print to take away the rights of consumers, patients, and workers. Unfortunately, forced arbitration has infiltrated nearly all aspects of American life,” said Lipsen, of the American Association for Justice. “Americans are subjected to forced arbitration clauses when they use credit cards, talk on their cell phones, visit websites, start a new job, and even admit a loved one into a nursing home. Corporations use forced arbitration because they know that when they lie, cheat, and steal from the public, the fine print gives them a free pass to break the law and evade all accountability.”Scartelli Olszewski agrees. We invite you to share this blog post with your friends and family on Facebook, Twitter, LinkedIn, or whichever social media platform you choose. If you include the hashtag #ForcedArbitration, your post will join thousands of others to help spread the word about this corporate offensive against your constitutional right to access to court system.Please also consider signing the American Association for Justice’s online petition to the Consumer Financial Protection Bureau at http://takejusticeback.com/node/512.And if you or a loved one is involved in a dispute with a company that is trying to force you into arbitration, we want to know about it. Call the Scranton and Wilkes-Barre attorneys at Scartelli Olszewski at 877-353-0529.To read the full series from The New York Times, click the links below:Arbitration Everywhere, Stacking the Deck of JusticeIn Arbitration, a ‘Privatization of the Justice System’In Religious Arbitration, Scripture is the Rule of Law