On Page 5 of a credit card a clause that most customers probably miss. If cardholders have a problem with their account, American Express explains, the company "may elect to resolve any claim by individual arbitration." Those nine words are at the center of a far-reaching power play orchestrated by American corporations. By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Thus begins the New York Times series called "Beware the Fine Print."  Journalists Jessica Silver-Greenberg, Robert Gebeloff, and Michael Corkery examine the world of forced arbitration. 

The NYT uncovers many of the unscrupulous practices that stack the deck against consumers: companies have paid employees to testify in their favor, charged exorbitantly for the hearings, and  hand-selected  arbitrators, who have "twisted or outright disregarded the law" in order to find favorable outcomes for the companies.

Not only does this fine print deny Americans their constitutional rights, but "faced with arbitration, it appears that most people do not pursue remedies to their grievances at all," says the NYT. With forced arbitration in employment and consumer contracts, many of the landmark cases in our country's history never would have occurred - Lilly Ledbetter, for one, would have never had her day in court to fight for equal pay. But now, these clauses are ubiquitous. Even more, it allows negligent corporations to jeopardize the safety of consumers: when people cannot bring light to unsafe practices by groups such as nursing homes and product manufacturers, we lose public accountability
Justice Kagan dissented in American Express v. Italian Colors Restaurant
which upheld arbitration clauses preventing class action suits.
Following the series, The Editorial Board officially released a stance on forced arbitration: "[T]he shift away from the civil justice system has gone beyond disputes about money. Nursing homes, obstetrics practices and private schools increasingly use forced-arbitration clauses to shield themselves from being taken to court over alleged discrimination, elder abuse, fraud, hate crimes, medical malpractice, and wrongful death," they write. "A common refrain [throughout the series] was the disbelief that this could happen in America. But it is happening, and it needs to stop."
It isn't just the New York Times that is passionate about ending these unjust practices. In everything from award-winning documentaries to local news sources, the topic of forced arbitration has been gathering attention. 

Just last year, the  Alliance for Justice  teamed up with former U.S. Secretary of Labor Robert Reich, Senator Sheldon Whitehouse, Congressman Hank Johnson, Paul Bland, De epak Gupta, and many others to create an award-winning documentary on forced arbitration. Watch the film here.

After the series by The Times, many outlets posted their own responses. In the Huffington Post, Sen. Al Franken and Rep. Hank Johnson wrote:
Make no mistake: These clauses, which are practically impossible to avoid, are designed to make it easier for big corporations to break the law and rip you off without facing any real consequences. It's unbelievably unfair. And it shouldn't be legal....These cases may not garner the same headlines as those involving public displays of religion or government surveillance, but they affect the rights, and the pocketbooks, of nearly all of us.

Locally, the Washington News Service interviewed WSAJ EAGLE Evy McElmeel, who has dealt with these clauses before. "They pick the arbitrator and there's many limitations on the arbitration. Discovery is limited, time is limited and often, recovery is limited."

Finally, we'll end with a bit of levit y from Daily Kos

As the New York Times Editorial Board said, "Reversing the broader trend of forced arbitration, however, will require outcry loud and long enough to stir the White House and Congress to action." Add your name to the outcry by telling Congress to ban forced arbitration.

What is the Washington State Association for Justice?

This Newsletter - Fighting for Justice - is designed to bring you the latest issues facing our civil justice system in Washington and in our country - including other's attempts to dismantle it and our efforts to protect it.

Our Mission: We stand up in the courtroom and in the halls of government for real people. We defend your Constitutional rights, including the right to have your day in court. We hold corporate and other powerful interests accountable. We are a community, creating and sharing the resources for our members to secure justice.

Our Membership includes 2,500 attorneys and legal professionals in communities large and small around Washington State. As trial lawyers, we fight for justice for citizens everyday in court. Our legislative team in Olympia is devoted to continuing the fight to ensure that citizens retain their civil justice rights.


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