The Seventh Amendment of the U.S. Constitution guarantees the right to trial by jury in civil cases over disputes that exceed $20. This right is as old as our democracy itself. The Seventh Amendment, introduced by James Madison, was included among the original Bill of Rights.
Arbitration is a proceeding governed by an agreement of parties, whereby a dispute between them is resolved by a neutral third party, rather than by a jury, whose decision will be final and binding on the parties. Arbitrators are most often lawyers or former judges, rather than people of diverse educational and occupational backgrounds that comprise most juries. Unlike jurors, arbitrators are paid handsomely to decide cases.
Arbitration was initially devised to provide a more cost and time efficient alternative to jury trials, which merchants in commercial transactions could utilize if they unanimously chose to do so. However, our arbitration structures now work primarily to stifle claims and prevent just outcomes when consumers or employees have been cheated or harmed by big businesses.
Research done by Consumer Reports and authors of a 2019 article in the UC Davis Law Review reveal that in 2018 there were at least 826,537,000 consumer arbitration agreements in force in America during the year 2018, and that 81 of the Fortune 100 largest companies in America had compulsory arbitration agreements incorporated somewhere in the small print of their purchase or service agreements or embedded in the product package labeling or warranty language.
Consumers and workers fare poorly against big businesses in arbitration. The American Association of Justice (AAJ) conducted a study of compulsory arbitration. That study revealed that in a period of five years though the year 2018, there were approximately 30,000 consumer arbitrations conducted by the two most predominant arbitration providers. Of those 30,000 arbitrations, only 1,909 consumers won, an average of 382 consumer winners per year for each of five years.
Over the same period, consumers pursued 6,012 financial claims against credit card companies or banks through forced arbitration. They won monetary awards in only 131 cases. Workers who pursued claims in arbitration against their employers were similarly unsuccessful.
Large corporations also use arbitration clauses to prevent formation of consumer class actions. In 2010, the U.S. Supreme Court issued a ruling in the case of AT&T Mobility, LLC v. Concepcion. That case was a dispute over a cellular phone contract. Concepcion, a California resident, claimed AT&T charged him money for a phone it should not have because it advertised the phone itself as free. Concepcion was not alone in making this complaint. He filed his case in court and then his claim was consolidated as part of a class action of consumers who had made the same allegations. However, embedded in Conception’s cellular service contract was language that the consumer waives the right to participate in a class action against AT&T.
AT&T moved to compel Concepcion into arbitration. Conception opposed the motion, citing a specific California state law that expressly deemed consumer class action waiver provisions in contracts as per se unenforceable and “unconscionable.”
Nonetheless, AT&T prevailed. SCOTUS ruled that the Federal Arbitration Act of 1925 preempted application of the California state law. The decision sounded a “death knell of consumer class actions.”
The pervasive use of forced arbitration clauses in consumer employment agreements has resulted in a destructive transformation of the civil justice system that harms the American public – where big businesses, when they harm consumers or employees, are less accountable for misconduct than ever before. And according to the Supreme Court, that’s the American way.
Comments 1
My name is Oscar Alexander Lopez
I am writing you today cause I am very desperate I suffer a work related injury on 11/12/2021 I injured my neck and my right shoulder and after one month of that injury because the doctor continue sending me to work back and forth and getting therapy, taking strong pain pills I suffered another injury to my left shoulder on 12/14/2021 because the company that I was working for did not listen to the doctors orders and they just make the injured worse doing
heavy duty job when I supposed to be in light duty.
The workers comps were treating me for my
first injury and after one month they send me to do an MRI one for my right shoulder and one for the neck that showed that I have a rotator cuff tear, labrum tear and herniated disc, my primary doctor told me I was going to need surgeries for both my right shoulder and my neck, I was in shocked when the doctor told me that, I also reported to my primary doctor that my left shoulder was hurting even to the neurosurgeon that was treating me for my neck, but the workers comp and the CNA insurance company denied those surgeries and they said that my extent of injury was only a strain sprain muscle when the MRI shows something different, I never had an injury before on my 25 years of work, this is the first time I suffered an injury and
they have proof of that because they check my past 25 years of previous work and I never had an injury before, how come they come up with a strain/sprained muscle? when they have proof
that it was not a strain/sprain muscle but a rotator cuff tear, labrum tear and herniated disc. For my left shoulder they never accepted that it was a work related injury but at the begging of my injury. I reported to the workers comp, the company supervisor and the CNA adjuster that I had a lot of pain in my left shoulder but it was ignored, after the insurance company and the workers comp left me I went to get medical treatment with my wife’s insurance and got an MRI from my left shoulder that showed a labrum tear and a rotator cuff tear I send that evidence to the workers comp but they denied my case. The Office of the Injured Employee Counsel had the opportunity to help me in this, I had 7 ombudsman and they were unable to do anything for me. The Workers Comp forget why they are in that position, the CNA have their opinion doctors and those doctors are the ones that the judges from the workers comp listen, not the proof that I have from the doctors that were treating me, but someone that is just an opinion doctor who has not even treated me, Workers comp was created for injured workers to send them back to work as soon as possible but what about if I am seriously injured and need multiple surgeries? they are going to lie so they don’t have to pay for the medical treatment
because they know they have to pay a lot of money. The doctor told them that if I don’t get the surgeries my condition was going to get worse, I am not able to work since the last three years, my spinal cord is damaged if the surgery was done on time nothing of this would be happening my right shoulder is messed up and my left shoulder as well I never thought that the companies that supposed to help me an injured worker were the ones that were there to betray
and leave me with no money no medical treatment, and handicap for the rest of my life because I have the diagnosis I have cervical spinal stenosis, cervical spinal myelomalacia.
Workers comp had the chance to help me but they decided not to, the CNA insurance
company did not accept my injuries were work related and The Office of Injured Employee Counsel did not do enough to help me and the company that I was working for Texas Pipe and
Supply.
I just need help to sue the workers comp and The CNA and the company I was working for Texas Pipe and Supply they were very unfair to me. By the way this injuries were cause by repetitive lifting of metal flanges moving them from one
place to another swinging them side to side that was the first injury the second one was lifting metal 90’s or metal elbows using my left arm 80% using my left arm and 20% my right as a support to be able to do my job.
Thank you for taking the time to read this letter I need your help I know you are here for the people, I have reached out to too many lawyers but nobody is willing to help me.