Attorney Bob Vogel can be contacted at rlvogel@robertvogellaw.com or by calling 865-357-1949
By opening a credit card envelope in the mail, making a call on a cell phone, or even
taking a first sip of coffee, millions of American consumers are unknowingly giving
law. Instead they unwittingly “agree” to the terms and conditions of a corporate backed
privatized system designed to ensure consumers can never hold corporations
accountable for causing harm, no matter how abusive or horrific.
Forced arbitration is Corporate America’s Trojan Horse – a campaign to eliminate access
to the courts and individual rights and replace them with big businesses’ own dispute
mill. Though most Americans remain largely unaware of forced arbitration and its effects
on their rights, more than half a billion arbitration provisions infi ltrate our everyday lives.
Forced arbitration clauses are bad news for consumers, patients and workers.
Arbitration can be an effective solution in business-to-business cases, when
corporations with vast legal resources and knowledge voluntarily agree to settle
with arbitration. But in the David versus Goliath context of an individual taking on a
corporation, forcing people into arbitration is little more than stealing their right to
justice. The otherwise benign-sounding idea of arbitration is actually a severely biased
process in which you can almost never win, and from which you can never escape. As
Senator Elizabeth Warren once said, forced arbitration is “Darth Vader’s Death Star--the
Empire always wins.”
Most Americans have “consented” to a wide range of forced arbitration clauses without
ever knowing it.
Forced arbitration eliminates all of the checks and balances of the civil justice system,
including the right to a public forum, the right to demand information from a
corporation, the right to a written record, and, most importantly, the right to trial by jury.
Arbitrators are not bound by law and their decisions are not subject to any meaningful
judicial review.
At every stage this Trojan Horse has been pushed by the fi nancial and lobbying might
of the U.S. Chamber of Commerce. Through its legal reform front group the Institute
for Legal Reform (ILR), the U.S. Chamber has been at the forefront of a heavily-funded
campaign to eliminate corporate accountability, even for massive violations of state and
federal law. For decades, this has primarily revolved around high profi le PR campaigns
to portray the civil justice system as beset by frivolous lawsuits. But where a billiondollar
tort reform campaign has not succeeded in closing the courthouse door, its more
stealthy compatriot – forced arbitration – has gone a long way to shielding corporations
from accountability and replacing the courthouse altogether.
Consumer forced arbitration clauses have surged in the last two decades as
corporations have pounced on the opportunities they present. To Big Business, the
boilerplate clauses are the ultimate out. Accountability for all misconduct and violations
of law has been eliminated by a paragraph of fi ne print that is rarely ever read. Without
realizing it, the majority of Americans have consented to forced arbitration multiple
times.1
These clauses are buried in the fi ne print of credit card
and cell phone contracts, in the packaging of every
imaginable retail product, and in mountainous pages of
nursing home care and employment contracts. Often,
consumers are unaware that they have agreed to a
forced arbitration clause. Corporations conduct extensive
market research to design these notices in a way that
makes them easy to ignore, with headers such as “there’s
nothing you need to do.”3 Researchers have shown that
it is next to impossible to see these forced arbitration
clauses before applying for a credit card or purchasing
a product, which means just by “receiving” the product
or service, one is “agreeing” to sign away all legal rights
and protections. Nor do consumers gain anything from
“agreeing” to waive their rights. Consumers do not get
better rates, faster service or enjoy any other form of
passed-on savings.
Even using a website can bind you to forced arbitration.
Sites such as PayPal, EBay, and Instagram use broad
forced arbitration clauses. Instagram’s forced arbitration
clause went so far as to ban users from participating
in actions by state attorneys general. Under such a provision, site visitors whose credit
card details were leaked would be unable to benefi t from any intervention by state
authorities.
Arbitration’s defenders claim it is more effi cient and less costly than the civil justice
system. If this were true, arbitration would not have to be forced on mostly
unwitting consumers. The truth is the U.S. Chamber’s forced arbitration campaign has
been nothing less than a rights grab of unprecedented sweep. Millions of Americans
have had their constitutional protections stripped away by boilerplate fi ne print slipped
into every imaginable contract.
With their accountability eliminated, corporations have found themselves free to cheat
and abuse customers and employees, encouraged by the fact that such abuses have
gone unchecked. And without a public record of theses abuses, Americans will have no
way of knowing just how much danger these products and services pose. When no one
is accountable, no one is safe.
While courts across the land have attempted to stand up to the unfairness of forced
arbitration, such attempts at preserving protections have been stymied by the U.S.
Supreme Court. The Court’s consistent message has been that individuals, groups, and
states will not be allowed to circumvent the FAA no matter how virtuous their cause.
This means that any respite from the abuses of forced arbitration lies with Congress and
federal agencies. Without Congressional action, corporations will use forced arbitration
for what it is – a license to steal.
Contact Attorney Bob Vogel for information about your rights. rlvogel@robertvogellaw.com
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