If you own a cell phone, use a credit card, or subscribe to cable or satellite TV, odds are very high that your contract with those companies contains an arbitration clause. Your employment contract very well may contain an arbitration clause. Your car loan agreement. The vacation you just booked with an online travel site. All are likely to have an arbitration clause buried somewhere in the fine print. And that’s bad news for you if you ever have a dispute with any of those companies.
In a three-part series published in late 2015, The New York Times explained in depth how corporate America has been luring consumers and employees into signing contracts that require all disputes be resolved through private arbitration. Consumers and employers aren’t given much choice. Companies offer “take it or leave it” contracts with the arbitration provisions buried at the end.
Resolving consumer and employment disputes through arbitration may sound good on the surface. Arbitrations can move more quickly than cases filed in court. But in practice, arbitrations heavily favor corporate America.
For one, the parties to an arbitration share the cost of the arbitrator, who can charge hundreds of dollars an hour for his time. Every telephone call or in-person meeting with the arbitrator means he’s on the clock and you’re paying for half the bill. For companies, those fees don’t put a dent in the bottom line. But for consumers or employees in a dispute over a few thousand dollars, the arbitrator’s fees add up quickly.
Corporations and their lawyers like to point out that courts charge fees for papers filed with the court, while arbitrators do not. They argue that filing costs can add up to more than half of the arbitrator’s fee. That may be true in some circumstances, but it’s a gross overgeneralization. Many consumers have disputes worth less than a few thousand dollars and could proceed in small claims court, which is less expensive and in many cases, doesn’t require you to hire and pay for an attorney. But when you sign that “take it or leave contract” with an arbitration clause, you give up your right to take your case to court.
Even if an arbitration doesn’t cost you much more than proceeding in court, the arbitration process often makes a mockery of the due process protections you would get in court and guaranteed by the Constitution. As The New York Times wrote:
Behind closed doors, proceedings can devolve into legal free-for-alls. Companies have paid employees to testify in their favor. A hearing that lasted six hours cost the plaintiff $150,000. Arbitrations have been conducted in the conference rooms of lawyers representing the companies accused of wrongdoing.
Winners and losers are decided by a single arbitrator who is largely at liberty to determine how much evidence a plaintiff can present and how much the defense can withhold. To deliver favorable outcomes to companies, some arbitrators have twisted or outright disregarded the law, interviews and records show.
And then there’s the personal and professional relationships many arbitrators have with lawyers for corporate defendants. Many arbitrators are former partners at the corporate law firms that represent the defendant companies. They know the corporate lawyers, socialize with them, and have every incentive to rule in a company’s favor, when that company is likely to be a repeat customer for the arbitrator’s services. Records reviewed by The New York Times revealed that 41 arbitrators had handled ten or more cases for one company between 2010 and 2014.
But the most egregious effect of the “take it or leave it” arbitration clauses is that most of them also now require you to waive your right to participate in a class action. In a class action, hundreds or thousands of individuals who have all been victims of the same fraud or misconduct join together in a lawsuit against the corporate defendant. Class actions have been a tremendously effective tool for bringing corporate wrongdoers to justice and deterring future misconduct. As The New York Times noted:
By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.
“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, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”
How did this happen? A group of corporate lawyers worked in secret for years to craft language for the arbitration clauses that are now embedded in consumer and employment contracts. They also worked in secret to develop the legal defense for arbitration provisions that waive rights to class actions. They ultimately succeeded in a series of opinions from the U.S. Supreme Court. First, in 2011 the Supreme Court ruled that the Federal Arbitration Act preempts state laws that prohibited these kinds of contracts. This paved the way for companies to use these contracts in an increasing number of consumer contracts. Then, in 2013 the Supreme Court ruled that a group of merchants suing American Express for violating federal antitrust laws were foreclosed from proceeding with a class action in federal court because they all signed agreements with American Express that contained a no-class-action arbitration provision.
The next time you sign up for a cell phone contract, rent a car or receive the “change of terms” notice from your credit card company in the mail, read the fine print. Make sure you understand if the contract contains an arbitration clause and what legal rights you are waiving in the process.