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How About Some Sexual Harassment With Your Mozzarella Sticks?
February 9, 2009 5:55 AM   Subscribe

How About Some Sexual Harassment With Your Mozzarella Sticks?
posted by expriest (98 comments total) 11 users marked this as a favorite

 
awesome
posted by docpops at 6:05 AM on February 9, 2009


gaaaaahd. I already had enough reasons to detest Applebee's. This just clinches it.
posted by Miko at 6:06 AM on February 9, 2009


An important story with a terrible, lulz-engendering link text.
posted by DU at 6:06 AM on February 9, 2009 [6 favorites]


Wow, that's pretty fucked up. I'd heard what a ripoff these arbitration clauses were, but I'd never heard of one getting in the way of something like a sexual harassment suit. That's pretty insane.

Arbitration clauses make sense when the two parties are of equal stature, such as between two companies, but they don't make sense when it comes to things like credit cards, car purchases, and the like where it's a business to consumer relationship and the Arbiter works for the business, and gets picked by the business.

There are even arbitration judges who have been fired for siding with the customer.
posted by delmoi at 6:09 AM on February 9, 2009


Aside: I was listening to an interview with a county court supervisor of some sort or other - missed his title - and he talked a lot about how important it is that cases get into court, because otherwise "we don't know what the law is." Every time there's a settlement out of court, the result is private and secret. There's no precedent set, no clarifying or chastening effects on other potential parties in suits, and no public information about the nasty crap that's going down in workplaces and institutions.

Having been through a mediation about workplace stuff myself, I certainly understand the attractions for an institution or employer - keep your name out of the papers, reduce the overall cost to you by totally avoiding court cost outlay, quicker resolution - but it's a damn shame how much of this stuff never reaches the light of day. The public is deprived of the sunshine.

Sure the courts are overburdened. Maybe the answer isn't 'push to arbitration' but 'more courts.'
posted by Miko at 6:10 AM on February 9, 2009 [2 favorites]


His reliance on phrases like "thrown out of court" and "kicked to the curb" makes me feel like I'm actually in the jury box!
posted by hermitosis at 6:14 AM on February 9, 2009 [1 favorite]


Well damn, I can't effectively boycott crapplebee's because I'm already avoiding their awful food.
posted by BrotherCaine at 6:18 AM on February 9, 2009 [9 favorites]


Yeah, man, can we start this post over? The link is something everyone on the site should read, but the text is not good. Generally I'm all for lulz, but this is a little more serious than that.
posted by Caduceus at 6:39 AM on February 9, 2009 [4 favorites]


There should be far more public awareness about the unfairness of arbitration. Most rulings are binding and overturning them through appeal is notoriously difficult.

"FAA § 10(a) provides four limited bases, which have been described as "grudgingly narrow" (Eljer Mfg. Inc. v. Kowin Dev. Corp., 14 F.3d 1250, 1253 (7th Cir. 1994)) for vacating an arbitral award: (1) the award was procured by corruption, fraud or undue means; (2) there was evident partiality or corruption by the arbitrators; (3) there was arbitral misconduct, such as refusal to hear material evidence; or (4) the arbitrators exceeded their powers, or so imperfectly executed their powers that they failed to render a mutual, final and definite award."

Corporations and medical organizations that rely heavily on arbitration give arbitrators "repeat business," and in so doing, are rewarded with positive bias. Arbitration, after all, is a business that must keep its loyal customers happy.

See WSJ (summary w/o subscription)
Banks v. Consumers, Guess Who Wins?
Restricting the Harm of Mandatory Arbitration
posted by terranova at 6:40 AM on February 9, 2009 [2 favorites]


Ban arbitration, jail arbiters.
posted by Pope Guilty at 6:42 AM on February 9, 2009


Miko wrote:

Sure the courts are overburdened. Maybe the answer isn't 'push to arbitration' but 'more courts.'

Maybe the real solution is to revoke corporate charters for companies that habitually violate the law. We'd severely restrict the rights of individuals when they violate the law, why not a corporation? This country goes nowhere until we reform our laws regarding corporations. EVERYTHING wrong with this country is tied in to the fact that corporations basically have more rights than individuals.
posted by any major dude at 6:45 AM on February 9, 2009 [75 favorites]


According to this, the Arbitration Fairness Act went nowhere in the last session, and needs to be introduced. If you believe it should be, you know what to do...

Hint: Contact the sponsor and co-sponsors, as well as your Senators!
posted by paddbear at 6:52 AM on February 9, 2009 [3 favorites]


Not a bad idea any major dude.
posted by dabitch at 6:53 AM on February 9, 2009


Already avoiding Applebees because of the way they treat nursing moms, hey, now I've got another reason.

Overall arbitration stuff is much scarier, I also didn't know it could apply to sexual harassment suits. I guess the message is; if this comes up suddenly in your work, you have to quit now or get screwed later? Although you're probably already screwed by your cell phone carrier/insurer? Yikes.
posted by emjaybee at 6:55 AM on February 9, 2009


Actually, the real solution is to rebuild our economy so people have options when they look for a job. That would actually solve many many problems.
posted by Outlawyr at 6:57 AM on February 9, 2009 [2 favorites]


Not sure if a classic single-link blog Op-Ed really classifies as best of the web, but I'm kind of glad this post is here. It's kind of ridiculous how many cases like this (this one, the rest of the blog, and then so much more) at a time when people exclaim smugly that discrimination is at an end and labour relations are awesome and gosh, those ethical corporations just don't stop doing good, do they?

Too bad that in our haste to be optimistic, we often sweep the bad under the rug. I wonder what the logic was in completely ignoring Dantz's extenuating circumstances and simply saying "you didn't quit right away, therefore the sexual harassment is no fault of the employer's"?
posted by Phire at 6:57 AM on February 9, 2009


any major dude tells you (sorry) right. Corporations have all the positive rights of individuals, with few of the benefits. The Founding Fathers who our conservative friends are so quick to cite, especially when complaining about "activist judges," were deeply un-trusting of corporations, and didn't want to grant corporate charters to any but the most convincingly altruistic groups. This is because they pretty much expected the state of things we're in today. (I wish I had citations to back me up, or at least access to some of my old history books. Anyone?)
posted by Caduceus at 7:00 AM on February 9, 2009


EVERYTHING wrong with this country is tied in to the fact that corporations basically have more rights than individuals.

Corporate personhood
posted by nax at 7:04 AM on February 9, 2009


Wow, that story wasn't funny at all. I was expecting at least something with jokes in it.

I had no idea how bad this stuff was.
posted by paisley henosis at 7:05 AM on February 9, 2009


Already avoiding Applebees because of the way they treat nursing moms

Already avoiding Applebees because of the food.
posted by fusinski at 7:06 AM on February 9, 2009 [1 favorite]


This makes me so angry.
posted by six-or-six-thirty at 7:15 AM on February 9, 2009


Looking at it from the other side, arbitration is actually a great idea for two corporations in, say, a contract dispute, because it cuts the exorbitant costs associated with the production of documents and the run up to trial. It's often quicker to resolve disputes than to go through the US court system. It's also a great way to stop baseless law suits filed by consumers to extract a nuisance settlement from big corporations.

The link is a good example of why arbitration is not a good fit for disputes between unequal parties where the little guy has a valid, fact-intensive claim.
posted by *s at 7:20 AM on February 9, 2009 [1 favorite]


The Founding Fathers who our conservative friends are so quick to cite, especially when complaining about "activist judges," were deeply un-trusting of corporations

"I hope we shall... crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." -- Thomas Jefferson to George Logan, 1816.

By commenting, poster agrees that any complaints pursuant to the wording of this post, or to the practice of binding arbitration, shall themselves be arbitrated in ancient Babylon under the Codex of Hammurabi.
posted by kid ichorous at 7:25 AM on February 9, 2009 [15 favorites]


Sigh. Now I'm all pissed off first thing on a Monday morning....
posted by Bummus at 7:26 AM on February 9, 2009


She filed suit against her employer—and the court kicked her to the curb. Even though Dantz refused to sign the binding arbitration agreement, the court said that merely by continuing to work for Applebees, she was bound by its terms.

This is disturbing to me. If "merely working" for the company is the same as legally signing the document, than why bother at all to have a document for her to sign? Why not just flash said document at hiring day? "By starting work here, you agree that we cannot be sued by you for any reason in a civil court. If we don't pay you the right amount, if we harass you sexually, if we maim you, too bad. You have no rights, you are an employee."
posted by Secret Life of Gravy at 7:27 AM on February 9, 2009 [3 favorites]


Couldn't the arguments against corporate personhood also be used to prevent other organizations of people (like unions etc.) from lobbying the government?
posted by vorpal bunny at 7:29 AM on February 9, 2009


And the sad thing is that most of us have (unknowingly?--well, doesn't matter, you should have known) made ourselves party to at least five or more current arbitration agreements simply by signing contracts.

/arbitration hate
posted by resurrexit at 7:30 AM on February 9, 2009


The Sixth Circuit opinion.
posted by resurrexit at 7:32 AM on February 9, 2009 [1 favorite]


I don't recall the context of this story, but I heard of a sexual harassment lawsuit that was thrown out because the harassed party tried to be friendly with those harassing her, instead of suing right away. From these limited anecdotes, it sounds like you should never assume it'll get better, but call out the harasser, and sue straight away.
posted by filthy light thief at 7:33 AM on February 9, 2009


I find many franchise chains to be dismal in regards to customer service and employee treatment. The best food and service I've had has always been at local diners and restaurants.

The Applebees by me gives such horrendous service to families of disabled kids that our local families with autistic spectrum children group passes around a warning about it.
posted by FunkyHelix at 7:43 AM on February 9, 2009


Hard cases make bad law. Arbitration clauses are contracts. Contracts are bargained-for agreements between parties. Parties are presumed to be able to weight the pros and cons of their bargains and decide whether to enter into them or not. Unless a party is a minor or feeble-minded or otherwise unable adequately to consent to the terms of the bargain, the bargain should be upheld. In the employment context, employers may have radically better information (they know arbitration favors them) and radically more power (the mom doesn't have a car so she can't work anywhere but the local Applebees). That is serious problem, not to be scoffed at, but the answer is not a paternalistic decision to invalidate the decision of the employee to give up his or her right to a jury trial as a condition of employment. There are much better answers.

For example, the main problem the author identifies in this post is that he feels arbitrators unfairly favor employers. If he feels that way, and people feel that's important enough to fix, then political capital can be spent to fix it. Laws can be passed to add transparency to the system and give employees better information -- or even give them certain limited outs from the model altogether as California has done. If the arbitration process works, then it actually saves money for the employer and the employee and the taxpayer (who isn't burdened with the cost of tons of frivolous lawsuits brought by greedy plaintiffs' lawyers -- which this case isn't, but many are). If the arbitration process is falling apart or failing, fix that process, but don't start throwing away people's right to contract.

And Outlawyr's solution is even better, though much harder: fix the economy so women like this have choices and there can be an Applebee's boycott that works. Crappy employment practices (if you think arbitration clauses are a crappy employment practice) can be addressed by consumers without the massive hammer of invalidating contracts. We all know that the courts suck at this -- why do we hope they will suddenly get good at it? But that's a much tougher fix, and frankly when arbitration works it's a good solution, so that's probably a better and easier way to go.

Consider this: almost all of the major investment banks have employee dispute resolution programs for their highly-compensated employees that force employees (or the banks themselves) to use first a non-binding mediation and then a binding private arbitration process to resolve disputes. The banks typically pick up the arbitrators' tab, which is often fairly large, though the employees have to pay their lawyers. If this story were about one of those bankers fighting for his multi-million dollar bonus, would we all be so upset? Presumably not -- in fact we'd be glad that stuff was not clogging up the courts and was being heard by arbitrators from the financial industry who understand the issues. The numbers would look different too -- the blogger here has cherry-picked his statistics a little. This is a very tough case with dreadful facts and the Supreme Court has been rotten on employment issues, no question, but contract invalidity is not where this fight should be fought.
posted by The Bellman at 7:46 AM on February 9, 2009 [1 favorite]


Arbitration is merely another step in the eventual usurpation of government and law by the corporate sector. Jennifer Government doesn't seem so far-fetched.
posted by Thorzdad at 7:48 AM on February 9, 2009 [1 favorite]


A woman puts up with sexual harassment for nearly 3 years and receives no satisfaction and it's somehow okay to make light of that?

I hope no one ever blogs about the abysmal treatment I got from my college's police when I was sexually assaulted because the post title will be something like, "sociology minor chooses to study rape firsthand LOLZ"
posted by giraffe at 7:53 AM on February 9, 2009 [1 favorite]


The Bellman: If you read the article, you'd see that the employee did not sign the agreement, rather, the court found that simply continuing to work there constituted an agreement. Which seems pretty screwed up to me.
posted by delmoi at 7:53 AM on February 9, 2009


I think what bothers me most about Corporate Personhood is that the Corporate Person is granted the benefits of personhood, but does not suffer the punishments when it breaks its obligation as a person.

If a person defrauds, cripples, harasses, or kills another person, or many other people, that person will be imprisoned, perhaps for life. That is to say, society will be rid of that person, that person will be incapable of interacting with society. When corporations are found sufficiently guilty of crimes, they should also be put away. That is, the individuals found most guilty should also be punished individually, but the corporation should be liquidated. Those not guilty of the crimes can reform another corporation, but when an organization as a whole is rotten, it isn't fair that they can trot out one fall-guy and just keep on going.
posted by explosion at 7:55 AM on February 9, 2009 [6 favorites]


but it's a damn shame how much of this stuff never reaches the light of day. The public is deprived of the sunshine.

Sure the courts are overburdened. Maybe the answer isn't 'push to arbitration' but 'more courts.'


Almost all cases settle before trial, arbitration or not, and that's in the interests of both parties. When you're a lawyer, your duty it towards your client and his or her best interests, not to the public's right to know about the lawsuit. In fact, most people would rather not have to file in court, because that means that their name is going to be out there on the internet as having sued their former employer. That said, many of these cases are filed with the EEOC before settlement (even if there's an arbitration clause), so there is a public record somewhere. Not sure how easy it is to get those filings through FOIA, though.
posted by footnote at 7:56 AM on February 9, 2009


Arbitration sounds like a good idea, because litigation is expensive and if the party that would eventually lose in court can be persuaded of that more cheaply, then everybody wins.

Binding arbitration is an evil, nonsensical, horrible idea - attempting to enforce a "binding arbitration" clause in a contract should be illegal, and it should be so obviously illegal that attempting to insert such a clause in a contract should be considered fraud on the part of the lawyer who tries it.

If someone you have a contract with has done something you can take them to court over, then by definition the contract has been broken! If I sign a contract saying "I promise to A and you promise to B", and you don't hold up your part of the bargain, you don't still get to enforce that I have to hold up mine! That should apply whether "A" is "pay these installments" or "not take you to court".
posted by roystgnr at 7:57 AM on February 9, 2009


I like the title. I probably wouldn't have clicked on it had it said "Overruledblog shows inherent unfairness and injustice in arbitration processzzzzzzzzzzzzzz."
posted by fungible at 7:58 AM on February 9, 2009


Bellman: don't we have all kinds of rights and remedies that are neigh-impossible to sign away via consumer / tenant protection laws and various civil rights? The view is that access to justice regarding {employment difficulty X} should be one of those for the same reasons of asymmetrical power.
posted by a robot made out of meat at 8:02 AM on February 9, 2009


We'd severely restrict the rights of individuals when they violate the law, why not a corporation?

Corporations as registered sex offenders? No employees able to bear arms?
posted by StickyCarpet at 8:03 AM on February 9, 2009


Hard cases make bad law. Arbitration clauses are contracts. Contracts are bargained-for agreements between parties.

Bellman: in Dantz, why couldn't you argue that the employee's strike-out of her arbitration clause was a counteroffer, which Applebee's accepted by its own performance (i.e., continuing to put employee on work schedule and paying her)? That's the problem with the case -- the arbitration clause actually was bargained over, but the court decided that the employer didn't have to actually accept the outcome of the bargain.
posted by footnote at 8:04 AM on February 9, 2009 [5 favorites]


delmoi: You're right, that's the most interesting issue here. The question is whether policies in an employee handbook that the employee is explicitly told about (but which most employees never read) can be enforced against the employee. It's a close call. You've probably never ready the EULA on most of your software, but it's enforceable against you, and the asshole manager probably never signed anything saying he agreed to Applebee's policy against sexual harassment, but you can bet he got fired for it. There is an argument that an agreement to arbitrate should be required to be in a separate writing executed by the parties, because it's somehow special, but then we have the problem of what counts as special: what can the company put in the handbook and what does it have to have separate agreements for?

New York and California both have explicit laws that prohibit employers from ever taking earned compensation away from non-management employees under any circumstances -- you can't sign an agreement that says "I agree to give up two weeks pay if I . . . ", it's illegal and won't be enforced. The people of New York and California (and maybe other states) have decided that employers have too much power over low-level employees (the law doesn't apply to management employees, at least in New York) and have passed a law saying that particular kind of clause is simply not going to be enforced.

If people feel the same way about arbitration, they can pass similar laws, but again courts are terrible at this and they are not the place to fight this battle.
posted by The Bellman at 8:08 AM on February 9, 2009 [1 favorite]


KBR/Halliburton invoked binding arbitration against Jamie Lee Jones.

Because of an employment contract signed by Halliburton employees requiring that all disputes be settled out of court, a legal analyst for CNN says employees alleged of gang raping a former employee may go free. Former employee Jamie Leigh Jones is filing a federal lawsuit claiming she was gang-raped by employees of Halliburton in Iraq and held shipping container with a bed, then told she would be fired if she sought medical treatment.
posted by kid ichorous at 8:15 AM on February 9, 2009 [1 favorite]


Though I could have sworn this subject came up in a relatively high profile Scientology case some time before the KBR one. But Google disappoints.
posted by kid ichorous at 8:17 AM on February 9, 2009


ARMOOM (ooh, I like that acronym almost as much as the nick itself!): Absolutely -- but we don't have similar laws relating to arbitration. In fact we have an entire structure of laws, including the Federal Arbitration Act, that says not only that you can agree to arbitration, but that courts should be very careful not to usurp that right. If we want carve-outs from that (for example for low-wage employees, or for employee handbooks, or for contracts of adhesion) that's a job for legislation, not for the courts. And it's not legislation that's likely to get passed, because frankly you and I don't want to pay for every credit card dispute that comes up where the aggrieved party can find a plaintiff's lawyer willing to take a contingency fee -- or anyway I don't. Your credit card contract is a contract of adhesion, no question, but there is no way they are going to eliminate that clause, and it's not clear to me that they should. Again, if we can fix the arbitration process it's a much better solution. Not easy, but better.

footnote: I haven't read the opinion in Dantz recently, but my understanding was that she refused to sign (I hadn't thought she struck the clause and returned the paper signed, but the same logic holds), and that the court found that, since Applebees made signing a condition of continued employment, when she continued working she was presumed to have accepted. So her refusal to sign could be seen as a counteroffer, but since then her decision to continue working could be seen as an acceptance. Again, it's a close call; and again I don't like the decision any more than anyone else, I'm more addressing the cries of "destroy all arbitration clauses" in this thread than the idea that this was a crappy outcome.
posted by The Bellman at 8:21 AM on February 9, 2009


She was given a program booklet that says:

"Your agreement to the program provisions, including arbitration, will be expressed by your continuing employment with the Company from and after October 1, 2001, by accepting any promotions, increases, transfers, bonuses or other benefits of employment, and by the Company's mutual promise to follow the Program's provisions, including those governing mandatory, binding arbitration."

So that's why they are holding her to the arbitration agreement, even though she refused to sign. There's more than one way to accept an offer, and by continuing to work there, the court reasoned, she accepted arbitration.

Again, the real problem is she had no other options. If she had, she would have left that employer for another where she was not harassed. She had no union to back her up, no bargaining power, and no choices. Welcome to the new economy.
posted by Outlawyr at 8:22 AM on February 9, 2009 [2 favorites]


Um, how does arbitration cover violations of the Civil Rights Act? This woman's civil rights as an employee were clearly infringed, that's not a mere salary dispute. How does arbitration even cover that?
posted by shagoth at 8:30 AM on February 9, 2009


The Bellman: "Arbitration clauses are contracts. Contracts are bargained-for agreements between parties."

In addition to the fact that the individual in question did not sign the agreement, it seems to me the best legal challenge might be to claim the arbitration constitutes a contract of adhesion, and therefore nullified even if signed, due to the significant gap in equality between the parties.

Oh yeah, EULAs don't typically stand up in court due to their status as Contracts of Adhesion, which is one of the reasons why software manufacturers bend over backwards to prevent setting a precedent in court.
posted by mystyk at 8:33 AM on February 9, 2009


...Applebees made signing a condition of continued employment, when she continued working she was presumed to have accepted. So her refusal to sign could be seen as a counteroffer, but since then her decision to continue working could be seen as an acceptance.

If I read the story right, Applebees' conditions were:
a) Sign the agreement to arbitration and remain a paid employee.
b) If you elect not to sign, you can remain as an UNPAID employee, working only for tips.

She apparently elected to not sign and continued to work for tips, per the agreement. It seems to me that, if Applebees did not pay her any wages, they, de-facto, accepted her refusal to submit to arbitration.
posted by Thorzdad at 8:43 AM on February 9, 2009 [1 favorite]


In Dantz, there was a separate 2-page arbitration agreement which specifically required a signature as acceptance. Dantz wrote on the agreement that "I cannot sign this as I would be lying." The arbitration agreement specified that it was the "the complete agreement of the parties on the subject of arbitration of disputes."

I would have argued that the other provision of the employment agreement/handbook that specified performance as acceptance of the arbitration agreement was displaced by the specific requirement in the arbitration agreement that acceptance be by signature. Then the question would be whether the parties still have a contract without the arbitration agreement. Well, we know from Buckeye Check Cashing that arbitration clauses are eminently severable (and no doubt Applebees inserted language to this effect in the employment agreement/handbook). So I think that Ms. Dantz ends up with her employment contract, but without the arbitration clause.
posted by footnote at 8:44 AM on February 9, 2009


Even Applebee's website has an arbitration clause:
Arbitration
Applebee's may elect to resolve any controversy or claim arising out of or relating to these Terms or our Web site by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Johnson County, Kansas, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Either you or we may seek any interim or preliminary relief from a state or federal court of competent jurisdiction in the state of Kansas, necessary to protect the rights or the property of you or Applebee's (or its agents, suppliers, and subcontractors), pending the completion of arbitration.

Perhaps Mefi should hire Shook, Hardy & Bacon, a big fat international law firm who are "enormously proud" to litigate for all those giant friendly corporations like big tabacco and insert piles of legalese into the site. This is one of the law firms that think that we desperatly need tort reform (for example, Steven B. Hantler, Mark Behrens & Leah Lorber, Is the Crisis in the Civil Justice System Real or Imagined? ) and by reform they mean to shut it down and use arbitration. These are the bad lawyers, which are quite different from the good lawyers.
posted by zenon at 8:49 AM on February 9, 2009


Arbitration clauses are contracts. Contracts are bargained-for agreements between parties

I'm not a lawyer, but even I know "but she agreed to it!" is rather simplistic reasoning. There are certain rights you can't waive no matter what you sign. For example, an employer can't pay an employee less than minimum wage simply because they both "agree" to it. The reason being that the employer then makes agreeing a condition of employment, and the law meant to protect the employee is effectively useless.
posted by drjimmy11 at 8:55 AM on February 9, 2009


Shook, Hardy & Bacon are Applebee's lawyers, they are at shb.com and the online legal action is at over here here .....
posted by zenon at 8:57 AM on February 9, 2009


Shook, Hardy & Bacon are Applebee's lawyers

Evil food abounds in this sentence.
posted by kid ichorous at 9:01 AM on February 9, 2009 [2 favorites]


This is one of the law firms that think that we desperatly need tort reform (for example, Steven B. Hantler, Mark Behrens & Leah Lorber, Is the Crisis in the Civil Justice System Real or Imagined? ) and by reform they mean to shut it down and use arbitration

I'm glad you mentioned this. I wish every yokel who thinks we need to do something about "nuisance lawsuits" because he heard a few anecdotes like the Mcdonald's hot coffee lady (who was actually horrifically injured and completely deserved compensation) would realize what "reform" really means: taking away the only recourse an individual has for some kind of justice when a huge, multi-billion dollar corporation takes it upon itself to ruin his life.
posted by drjimmy11 at 9:01 AM on February 9, 2009 [1 favorite]


There are some things I just shouldn't read. My smoldering rage eventually expresses itself inappropriately.
posted by Xoebe at 9:05 AM on February 9, 2009


Won't someone think of the conglomerate food chains?

like the Mcdonald's hot coffee lady (who was actually horrifically injured and completely deserved compensation)

Dude I hear you. I want to cockpunch someone whenever they bring up the McDonalds/hot coffee suit. Any poopsocking nerd worth his weight in empty frappachino bottles has already Googled that and knows better.
posted by KevinSkomsvold at 9:16 AM on February 9, 2009 [2 favorites]


IANL, but I know that a contract with something illegal is not a valid contract. Why is that so hard to prove in court? Fucking soulless corporate lawyers destroying America.
posted by hal_c_on at 9:18 AM on February 9, 2009


The Bellman: Plaintiff had a contract with Applebees. Applebees changed the terms of the contract to take away her ability to have a jury trial if she decides to sue them. Taking as valid the court's ruling that she "agreed" to the contract by simply continuing to work there (for tips alone and no salary!), the new contract is still invalid because there was no consideration in the change of terms. The sixth circuit here found that Applebees' changing te contract so that she continues to work under these conditions, but they don't pay her, and she can't sue them, was legitimate.

I think there just might be grounds for further appeal of this one.
posted by Navelgazer at 9:21 AM on February 9, 2009 [2 favorites]


Thorzdad : ...Applebees made signing a condition of continued employment, when she continued working she was presumed to have accepted.

I wonder if an sufficiently motivated employee could arrange for a reciprocal kind of response; a drafted document which basically says that as long as the company continues to provide a work environment, they are conditionally responsible for providing insurance, a $100,000 yearly bonus, and a company car, then it is presented to HR and not pursued for three years.

When it goes to arbitration the employee could simply point out that they provided a set of conditions for their employment and the company, by continuing to allow them to work there, agreed to those conditions.

I really doubt anything like this could work in a corporate environment, but in a restaurant where the management is more concerned with looking up the employee's skirts? Maybe.

I know nothing of the law, but it seems like if this can works one direction, it should go both ways.
posted by quin at 9:21 AM on February 9, 2009



I know nothing of the law, but it seems like if this can works one direction, it should go both ways.


Sadly, the law usually only works in one direction nowadays.
posted by fuq at 10:03 AM on February 9, 2009


First, this post is framed horribly. It has a misleading Fark-level title. Furthermore, it only links to one op-ed blog screed of someone with a disclosed bias.

To the issue of arbitration: the linked information is misleading. The claim that the vast majority of the time the corporate wins is intentionally obtuse. Yes, the vast majority of time that an arbitration award ends as a final ruling, the corporation wins. But that overlooks a couple of important factors:

1. Legitimate claims are usually resolved/settled. If there is a legitimate complaint, companies are inclined to pay it. There is no incentive in ringing up 5-6 figures in legal fees trying to defend a claim that you are likely to pay on anyhow. So some are resolved right away. Some are resolved after the process begins. Some are resolved right up to the hour before the arbitration ruling due to how the hearing went. So the issue of the "winner" at the arbitration ruling is actually reflective of questionable claims that the corporation thinks so little of that they are willing to defend to a ruling. It is a similar reason as to why prosecutors have high conviction rates, the losers are resolved earlier.

2. Too often individuals try to represent themselves and lose. Corporations hire attorneys. Individuals try to do it on their own. If you represent yourself against an attorney who does this for a living, I would think that 99.99% of the time you will lose. In fact, the only time you will win is when your case is so overwhelming meritorious that you cannot lose it, but such a case is likely to resolve (per #1). Also, individuals are more likely to pursue losing/unmeritorious claims. Attorneys will know "you can't sue for that" but a lay person won't understand that, so they try and lose.

Those two factors are the large reasons why the arbitration figures appear to support corporations. The more interesting and telling statistics would be to take all claims every made, then look at % settlement payment is made vs. % final judgment is reached. Cross-index the numbers based on when the claimant has an attorney, and you will see the difference. If you have an attorney and a legitimate, ripe claim, the fact that there is an arbitration agreement is not fatal to your claim. You can, and probably will, recover.

That is the problem with the post. It takes selective data and anecdotes to make its point, and there is nothing offering the opposing viewpoint.

That being said, I hate arbitration. Hate it, hate it, hate it. I advise my clients against using it. I'd rather be in front of a judge with the appellate rights available to me every time. Arbitration is rigid and limiting to the agreement in question. I prefer to have all avenues available to me. Moreover, the arbitrator is often angling for a compromise. Additionally, the process is needlessly expensive and burdensome, in large part due to its rigidity. I agree with the poster above that I'd rather have more courts than more arbitration.

There are a whole lot of problems with arbitration and, especially, binding arbitration. But it is useful to criticize it on its own merits instead of trying to take it down because of selected inflammatory cases which appear to be wrongly decided (despite missing a lot of important details).
posted by dios at 10:22 AM on February 9, 2009 [9 favorites]


I would also like to point out that states often due try to prevent the abuse of process with these things. For instance, the State of Texas has a statute which prohibits pre-injury waivers of access to the courts. An employer cannot get an employee to sign an agreement to exclude future injuries from having access to the Courts. I think other states have similar laws in the employer-employee context. This is a big problem with unions and collective bargaining: they often limit the rights of their members to have access to the courts because of the collective bargaining agreements they reach.

Moreover, in the consumer transaction area of law, there are many limitations on what can be contained in an arbitration agreement. These laws arose because of the old problem of companies including arbitration agreements that said that claims had to be arbitrated, for instance, in Paris, France. So states are, to varying degrees, working to stop the abuses of the process.

Arbitration works in a very limited scope of matters. I would advocate courts take a restrictive look at such agreements instead of the expansive, favoring view they have now.
posted by dios at 10:30 AM on February 9, 2009


Excellent points, dios.
posted by voltairemodern at 10:35 AM on February 9, 2009


I was going to post in my last commecnt "paging dios..." but someone beat me to it. Glad to see you in this thread with your most excellent input.
posted by KevinSkomsvold at 10:42 AM on February 9, 2009


Of more concern to me in my experience has been the abusive practices heaped on top of other abusive practices by corporations where arbitration clauses are concerned.

One, many arbitration clauses not only remove your ability to sue in court, but many times also strip you of your right to bring class action lawsuits at all. While there have been some encouraging developments on that front recently, with the U.S. Court of Appeals holding that such a clause to be unenforceable, the problem still remains in other jurisdictions.

Even assuming other circuits will eventually follow the 2d Cir.'s decision, the onus is still on individual litigants to navigate the labyrinth of arbitration law at the trial and appellate levels to get out from under class action waiver provisions. And after years of fighting and thousands of dollars in attorney's fees, if they win, all they get is the opportunity to undergo the entire process all over again and pursue their original lawsuit.

This has the predictable effect of discouraging plaintiff's lawyers from taking class action cases where an arbitration clause is concerned, because it will be several years and countless work hours before the case generates a single cent. With the class action taken out of the plaintiff's arsenal, corporations enjoy far more freedom to engage in illegal acts or practices that only produce a small cost to each individual victim-- too small for any lone plaintiff to pursue, but, in the aggregate, significant enough to bring in extra income for the corporation.

Two, arbitration clauses often provide that attorney's fees are awarded to the prevailing party. I know that on some level, that probably strikes a lot of people as a good thing, as it has the effect of discouraging meritless lawsuits with the threat of an award of thousands of dollars' worth of attorney's fees. But remember-- the parties don't go into the arbitration process on equal footing. The arbitration clause frequently restricts the choice of arbitrators, and that's no accident.

Taking California as a representative example (because it's the only state that requires public disclosure of any of the results of arbitration), consumers lost 95% of the time in arbitration. (original report) My sense is that that's not unusual.

Three, arbitration clauses often stand alongside forum selection clauses-- that is, a provision in the contract saying that the claims can only be heard in a certain state. Under this banking agreement: Austin, Texas. Not so convenient for me, a resident of the Northeast. An e-commerce site I used? Virginia. Probably not a short trip for consumers on the west coast. Just another hurdle interposed between consumers and a fair hearing by corporations.

Four, and this was surprising to me before I accumulated a bit of experience in the law, arbitration clauses are triggered by corporate litigants in a large amount of cases in one specific area-- debt collection. As you might expect, debtors don't always get a fair hearing: the National Arbitration Forum, one of the preferred venues for corporate debt collection, was sued by San Fransisco for running an "arbitration mill, churning out arbitration awards in favor of debt collectors." In other cases, the arbitration agency's rules governing service of process have left debtors with a judgment against them before they got any other notice of a claim against them.

The Fairness in Arbitration Act is a good first step, but since it's operating on the timetable of the federal government, I'll expect it to pass right around the time John Yoo is prosecuted for conspiracy to violate U.S. laws against torture. Another thing people have sometimes done is taken a contract sent by a big corporation, crossed out the arbitration clause, and written "TERMS NOT ACCEPTED" next to it before signing and returning it. If their processing or legal departments are asleep at the switch, it might just give you a get out of jail free card concerning what I see as one of the most abusive treatments visited on American consumers today.
posted by Law Talkin' Guy at 10:55 AM on February 9, 2009 [3 favorites]


Outlawyr wrote Again, the real problem is she had no other options. If she had, she would have left that employer for another where she was not harassed. She had no union to back her up, no bargaining power, and no choices. Welcome to the new economy.

Nothing new about it, actually. Welcome to the Age of the Robber Barons Part 2.

But history to the side why would you assume that if she had a car, or other means of easy travel, she'd have any better options? I don't know of any employer these days who hasn't put in an arbitration clause. Binding arbitration is so very very good to big corporations, and so very very bad to everyone else, that they all do it. There are no options, and that's why we need to change the situation by means of the law.

But to blithely assert that the *real* problem isn't that binding arbitration is a really lousy deal set up specifically and deliberately to empower big players while screwing over everyone else, but merely that the little people need greater choice among employers is bizarre to say the least. In the imaginary world of perfect capitalism, yeah, you've got a point; but in the real world things don't work like that.
posted by sotonohito at 11:10 AM on February 9, 2009


I still don't get why arbitration is even relevant when there is blatant breaking of the law, as there was in this case.

Would it have gone to arbitration if she'd been caught stealing from the till?

And I agree that if Applebee's allowed her to stay but didn't pay her anything, it sounds like they agreed to the terms. If the contract is still binding despite her not being signing, I hope they pay her back wages.
posted by small_ruminant at 11:52 AM on February 9, 2009


“My smoldering rage eventually expresses itself inappropriately.”

Yeah, me too. Still, don’t people beat the hell out of anyone anymore? Just being devil’s advocate here for those baser passions. If one a female friend, whatever, told me this happened to her I’d put a stop to it. Harrassment, whatever. Something like this I’d be really pissed off. They want to settle out of court? Yeah, I’d be happy to settle this out of court. Got a good dentist? Seriously, co-workers threw food at her? Aren’t there any real men out there? Is there some convoluted morality here that I’m missing? Some complex shade of gray that says you don’t take care of women and children and straighten out punks like this?
No one fucking stood up for her? Worse, threw food at her? How do they look themselves in the face and not die a cowards death every day? Over a job wearing a name badge? It means that much more than elementary decency and humanity?
I don’t want to get into the Mike Judge Nazis/pieces of flair thing here, but that’s exactly what this is. I’m not saying you firebomb an Applebee’s here of course (and really - what’s the point, gas fumes would only really enhance the taste of the “food”).
But if folks don’t have that basic sense of common humanity and the will to do something to protect it, bullies are going to gain power and step all over you and everyone else and anything you care about.
Male co-workers threw food at her. Despicable. Having a set of external genitalia doesn’t make you a man.

Hmn. I’ve got a buddy in Ohio. I think I’ll send him a big stack of copies of this story and have him paper Applebee’s in Akron with it. Hell, I’m going to print this out and find wherever the hell an Applebees is out here (never been). (Schaumburg. Huh. It’s a testament to how pissed off I am that I’d drive in Schaumburg)
Morestuff on this.
posted by Smedleyman at 12:45 PM on February 9, 2009 [2 favorites]


How about a massive campaign to demonize arbitration clauses and encourage people to strike them out of contracts and agreements? It seems like a drop in the bucket, though, especially with millions of people enthusiastically signing stuff without reading it.
posted by crapmatic at 1:10 PM on February 9, 2009


Poor Debbie Dantz. Boss lifted up her dress and she just kept going back for more. Three years more. She could have gone to work at McDonalds. But that doesn't pay as well as sexual harassment lawsuits.
posted by Hovercraft Eel at 1:13 PM on February 9, 2009


Hovercraft Eel, you're new here so I'll go easy: you're first second against the wall when the War on Misogynistic Assholes is over.
posted by joe lisboa at 1:37 PM on February 9, 2009 [2 favorites]


like the Mcdonald's hot coffee lady (who was actually horrifically injured and completely deserved compensation)

Dude I hear you. I want to cockpunch someone whenever they bring up the McDonalds/hot coffee suit. Any poopsocking nerd worth his weight in empty frappachino bottles has already Googled that and knows better.


i've seen this sentiment get bandied around on metafilter for the last few years and honestly don't understand it. the bulk of the $3 million award that started the whole brouhaha was for punitive damages against mcdonalds. it had nothing to do with the lady's medical bills or suffering, which came to like $200k (an amount which, had that been the extent of the award, we would have probably never heard about).

as far as i can tell, the big rationale on teh google for why the punitive compensation was just was that "the coffee was 180-190 degrees, which is way too hot." when i make tea or coffee at home, the liquid comes out of the pot at that temperature (or hotter). these things are near-boiling hot by virtue of how they're made. if i serve my coffee to someone in my kitchen, do they get to sue me? why not? and how is this different? what about the any number of other things that are served in restaurants at comparable temperatures?

and what world do you people live in where coffee should be 140 degrees? the hell? my showers are nearly that hot.

scalds and burns are awful accidents, and they happen far too often, but they are accidents. people get horribly injured and disfigured in accidents all the time, and it's not always someone's fault. i think a reasonably prudent person would see that handling a hot cup of whatever carries a certain implied risk, and furthermore that holding the cup between your goddamn knees in a car while you fuck around with it increases that risk substantially. that whole scene was a recipe for an oh-shit moment, frankly. why do common sense expectations of safety and responsibility evaporate when an easy target is involved?

anyway, this poopsocking nerd would like to know why it is that he should "know better".
posted by sergeant sandwich at 1:46 PM on February 9, 2009 [2 favorites]


Poor Debbie Dantz. Boss lifted up her dress and she just kept going back for more. Three years more. She could have gone to work at McDonalds. But that doesn't pay as well as sexual harassment lawsuits.

I'm going to make millions after I perfect my "cockpunch-over-ip" invention.
posted by ryoshu at 1:49 PM on February 9, 2009 [6 favorites]


How About Some Sexual Harassment With Your Mozzarella Sticks?

No thanks I'm trying to cut back.
posted by turgid dahlia at 2:08 PM on February 9, 2009


joe lisboa and ryoshu, perhaps threats of physical violence isn't the best way to disagree with another poster's opinion?
posted by and hosted from Uranus at 2:11 PM on February 9, 2009


Holy crap. The Debbie Dantz story is a great one to bring up on this site, but this is turning out to be the worst threads ever. Invoking the McDonalds coffee claim is like Godwin for threads on legal issues.
posted by jabberjaw at 2:12 PM on February 9, 2009 [1 favorite]


Oh wow. Having actually read the article, I confess to some degree of blind fury.
posted by turgid dahlia at 2:14 PM on February 9, 2009


I still don't get why arbitration is even relevant when there is blatant breaking of the law, as there was in this case.

Because punitive damage awards vary wildly between jury trials in the public courts, and private arbitration forums. I think majority of arbitration associations (though I could be wrong on the point) don't award punitive damages at all.
posted by Law Talkin' Guy at 2:18 PM on February 9, 2009


But that doesn't pay as well as sexual harassment lawsuits.

Yeah, I'm not sure that's how it works. People don't stay in jobs where they are sexually assaulted every day because they're thinking "Awesome, he touched my breasts twice today, and then rubbed his crotch against my ass, and called me 'dollsnatch' five times, that's like, two payout of ten grand, one of six, and another fifteen-hundred and change. If he keeps this up I might have to wear shorter skirts! Easy street here I come!"
posted by turgid dahlia at 2:21 PM on February 9, 2009 [4 favorites]


I still don't get why arbitration is even relevant when there is blatant breaking of the law, as there was in this case.

Because punitive damage awards vary wildly between jury trials in the public courts, and private arbitration forums. I think majority of arbitration associations (though I could be wrong on the point) don't award punitive damages at all.

And that's over and above all the other inconveniences and disadvantages thrust upon individual litigants in a forum that's known to favor corporations. I did my best to catalog the ones I've personally witnessed in my career, but I'm sure I'm missing others.
posted by Law Talkin' Guy at 2:22 PM on February 9, 2009


Uh, that was weird that my post submitted itself before I was done. I guess my disdain for arbitration is chomping at the bit to get out.
posted by Law Talkin' Guy at 2:23 PM on February 9, 2009


joe lisboa and ryoshu, perhaps threats of physical violence isn't the best way to disagree with another poster's opinion?

Right. Because there's a clear equivalence between the sort of humiliation women (indeed, people) feel daily when victimized and (then, as this nitwit appears to do, blame the victim) and a riff on an old cliche, not to mention the highly plausible "cockpunch-via-IP" technology ryoshu was discussing. I mean, it's quite clear I intend to shoot another MeFite following a violent revolution and it's equally clear that ryoshu intends to e-cockpunch him, too.

Totally equivalent.
posted by joe lisboa at 2:28 PM on February 9, 2009


as far as i can tell, the big rationale on teh google for why the punitive compensation was just was that "the coffee was 180-190 degrees, which is way too hot."

You are wrong on several counts.

First, Ms. Liebeck did not receive $3 million in punitive damages. She was awarded $480,000, or the standard level of "triple actual damages." What she actually received is unknown; they eventually settled.

Second, the reason McDonald's got hit with punitive damages is that they knew full well that significant numbers of people would be burned by their coffee, they knew full well that over 700 people had been seriously burned by their coffee, their own research showed no need to maintain the coffee at 190F, and McDonalds admitted that even the "this is hot" statement on their coffee could not constitute any warning because of its location.

Not "the coffee is way too hot." Instead, "we know the coffee is causing injuries, but we're not taking any steps to reduce or eliminate those injuries." Courts just love that.

when i make tea or coffee at home, the liquid comes out of the pot at that temperature (or hotter)

It's common for businesses to owe a higher duty to care to paying customers than you do to your houseguests. When a business hands you something and asserts that it is food, it probably should not be in such a state that it will destroy your flesh on contact if you attempt to ingest it.

As well, you need to imagine that it's not the first person who has suffered serious burns that's suing you. It's the thousandth.

furthermore that holding the cup between your goddamn knees in a car while you fuck around with it increases that risk substantially

Imagine you're an old lady. What do you think is going to be more stable: holding it in one jittery old lady hand while you use your other jittery old lady hand to remove the top, or steadying it between your knees?
posted by ROU_Xenophobe at 2:32 PM on February 9, 2009 [2 favorites]


perhaps threats of physical violence isn't the best way to disagree with another poster's opinion?

Oh, come one. Hovercraft Eel is totally asking for it. Just look at what he's wearing.
posted by ryoshu at 2:32 PM on February 9, 2009 [3 favorites]


sergeant sandwich, the hot coffee case as summarized by FindLaw.

The decision in that case (which I haven't read myself, and don't immediately find online) wasn't that the coffee was too hot, but that McDonalds was injuring too many people and refusing to pay their expenses. Supposedly there were 700 scald cases in the previous ten years. That's somebody burnt enough to ask for money, once a week, for a decade.

When you do something on an industrial scale, you have to be more careful than when you do the same thing once in your kitchen.
posted by fantabulous timewaster at 3:22 PM on February 9, 2009


anyway, this poopsocking nerd would like to know why it is that he should "know better".

The sweatpants Liebeck was wearing absorbed the coffee and held it next
to her skin. A vascular surgeon determined that Liebeck suffered full
thickness burns (or third-degree burns) over 6 percent of her body,
including her inner thighs, perineum, buttocks, and genital and groin
areas. She was hospitalized for eight days, during which time she
underwent skin grafting. Liebeck, who also underwent debridement
treatments, sought to settle her claim for $20,000, but McDonalds
refused.

During discovery, McDonalds produced documents showing more than 700
claims by people burned by its coffee between 1982 and 1992. Some claims
involved third-degree burns substantially similar to Liebecks. This
history documented McDonalds' knowledge about the extent and nature of
this hazard.

McDonalds also said during discovery that, based on a consultants
advice, it held its coffee at between 180 and 190 degrees fahrenheit to
maintain optimum taste. He admitted that he had not evaluated the
safety ramifications at this temperature. Other establishments sell
coffee at substantially lower temperatures, and coffee served at home is
generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company
actively enforces a requirement that coffee be held in the pot at 185
degrees, plus or minus five degrees. He also testified that a burn
hazard exists with any food substance served at 140 degrees or above,
and that McDonalds coffee, at the temperature at which it was poured
into styrofoam cups, was not fit for consumption because it would burn
the mouth and throat. The quality assurance manager admitted that burns
would occur, but testified that McDonalds had no intention of reducing
the "holding temperature" of its coffee. [source]


This information is produced pretty consistently across a number of law sites in varying forms. Maybe some more lawyerly peeps here can vouch for it.
posted by KevinSkomsvold at 3:58 PM on February 9, 2009


Wow, what a putz for treating a woman like that.
What a weakling.
Guess who is obviously not getting laid, and hiding behind a corporation to service his insecurities?
Grow some balls, man. I have to admit after reading this i do have an uncontrollable urge to find and punch her boss. In the cock.
posted by 5imian at 3:58 PM on February 9, 2009


rou_x, i'm aware of all those things including the final amount after the appeal and the history of complaints.

to my mind (and many others', not all of which are uninformed, thank you) it was not a case of "mcdonalds repeatedly injures people through negligent behavior" so much as "mcdonalds sells a product with which people repeatedly injure themselves through negligent behavior".

it's comparable to suing the electric company because you shocked yourself. people get electrocuted all the time, and the power company knows about it, and electricity (like hot liquid) is pretty universally understood to be dangerous. the company knows that people are repeatedly getting hurt, but it's not like they're sticking people's fingers into light sockets. mcdonalds is not flinging coffee on it's customers through the drive-through window. people are doing this to themselves. and in both cases, altering the product to make it so nobody can hurt themselves is basically at odds with the whole point of what they're selling.

anyway, apologies for derailing the thread into McLawsuit-land. on topic, i don't think corporations should be granted the same "civil rights" that people are, and more or less agree with the sentiment of any major dude upthread. limited liability should go hand in hand with limited application of whatever natural rights we assume for people.

(though i don't think revocation of corporate charters, as analogy for prison sentences or whatever, is the right answer. that's fairly drastic, and doing it to, say, wal-mart or microsoft is pretty much a guaranteed instant recession.

given that it's not really practical to just shut down a big corporation when they break the law, i think a better solution is legislation that moots all the precedent that's descended from the corporate personhood assumption in santa clara county v. southern pacific and spells out a far more restrictive set of rights for corporate bodies. it certainly would go a long way in my mind to restoring a sense of balance to the "social contract" that gets applied to corps.)
posted by sergeant sandwich at 4:33 PM on February 9, 2009


Guess who is obviously not getting laid, and hiding behind a corporation to service his insecurities?

H... H... Hitler?
posted by ROU_Xenophobe at 4:34 PM on February 9, 2009


people are doing this to themselves. and in both cases, altering the product to make it so nobody can hurt themselves is basically at odds with the whole point of what they're selling

Giving people coffee in a state in which it can be drunk without serious injury is hardly at odds with the whole point of giving people coffee to drink. It is, in fact, highly consonant with that whole point.

And you're confusing "Nobody could possibly be hurt by this ever, at all, even to the slightest degree" with "The risk of burns would be limited to second-degree."

it's comparable to suing the electric company because you shocked yourself. people get electrocuted all the time, and the power company knows about it, and electricity (like hot liquid) is pretty universally understood to be dangerous.

No, it's comparable to suing one particular power company because it sends current into the house at 20,000 volts so that you can get shocked in ways that a person familiar with normal electrical service would not reasonably expect to get shocked.
posted by ROU_Xenophobe at 4:48 PM on February 9, 2009 [2 favorites]


Guess who is obviously not getting laid, and hiding behind a corporation to service his insecurities?

H... H... Hitler?


close enough.
posted by 5imian at 5:41 PM on February 9, 2009


Does this not reek of slavery to anyone else?
posted by Sys Rq at 9:23 PM on February 9, 2009


Of course not! Slavery only happens to black people.
posted by fantabulous timewaster at 9:30 PM on February 9, 2009


sergeant sandwich: actually, a quick wikipedia chaeck (I'd read Santa Clara before but couldn't recall it by name) will reveal that the opinion actually offered no judicial precedent on the "personhood" of corporations nor granted them fourteenth amendment rights, but even I'll admit that I'm splitting hairs there. People act like it did, and that's enough in this situation.

I'm shocked by the sixth circuit's opinion on this not just for the basic CLT reasons I described above (a one-sided renegotiation of a contract, unaccepted by the other party, absent anything even comparable to consideration) but because, well, I'm at a top-tier law school, and while I don't remember 1L year that well, I thought I remembered that mandatory arbitration agreements were discussed in Civ-Pro sort of like mandatory medical waivers before surgery. i.e. they were the sort of thing that hospitals/corporations could try, sure, but no court in the land was going to accept them in the end.

That's why I'm blown away - I know that conservative legal scholars like to treat the idea of economic coercion like the elephant in the living room, but they're not manifestly or actively evil either. They just have an odd set of baselines and revered principles compared to, say, me. So I ask you all ("all" here means those with more experience than my 1.5 years in law school), if you were Scalia, presented with the CLT contracts argument, how would you respond? COuld this truly be considered a valid contract under these conditions?
posted by Navelgazer at 9:40 PM on February 9, 2009


Additionally, if I'm wrong about the way that manditory arbitration clauses are treated in the courts, and it seems like I must be, then why wouldn't any attorney worth his or her salt not take this through the criminal courts first, and then use the conviction as res judicata? I'd hope (I'd really, really hope?) that even the narrowly-construed grounds for arbitration appeal would allow clear evidence of prior judgment to show improper bias in the case of an arbitrator who refused to take them into account.
posted by Navelgazer at 9:49 PM on February 9, 2009


I remembered that mandatory arbitration agreements were discussed in Civ-Pro sort of like mandatory medical waivers before surgery. i.e. they were the sort of thing that hospitals/corporations could try, sure, but no court in the land was going to accept them in the end.

Several things about this:

1. Mandatory arbitration agreements are valid in general. Indeed, the Federal Arbitration Act as well as many (if not all) state acts favor arbitration. That is, they are to be construed liberally as preconditions to suit. A properly formed mandatory arbitration agreement will be enforced. Of course, the questions are two parts: (1) was the arbitration agreement properly formed; and (2) is the subject matter at issue arbitrable--that is, does the issue fall under the arbitration agreement.

2. I'm not sure what you mean by "mandatory medical waivers before surgery." If you are referring to an exculpatory clause, then yeah those are in a lot of circumstances voidable (not void) for public policy reasons. A lot of time, they are subsumed into a proportional responsibility/comparative negligence statute in any given state. However, if you are referring to a disclosure of risks, then that is an informed consent issue, and the disclosure of such risks in writing, signed by the patient, can, in certain circumstances, act as a bar to liability. In the end, I'm not sure they are a good analog.

if you were Scalia, presented with the CLT contracts argument, how would you respond? COuld this truly be considered a valid contract under these conditions?

As I recall, Scalia taught contracts at one point, and he has usually taken a fairly deferential view to them. Remember, in this case, the appellate court is not looking at the issue de novo. Rather, it is reviewing the trial court's decision for an abuse of discretion. In this case, the trial court found a unilateral contract (rather important point) that was accepted by performance. The question you raise is one of consideration. The trial court found the consideration was the agreement to encumber oneself with submission to binding arbitration. Both sides assumed that burden. Consideration is not always money. Then, having found offer, acceptance, consideration, and mutual assent/meeting of the minds, the Court then determined it was not illegal or unconscionable, so therefore a valid agreement is in place.

What would Scalia do on de novo review? I'm not sure. Probably permitted it if he saw it as a unilateral contract accepted by performance. I'm not sure he would have saw it that way. But I think reviewing the decision of the trial court, he'd probably affirm.

why wouldn't any attorney worth his or her salt not take this through the criminal courts first, and then use the conviction as res judicata?

Well, first, a civil attorney cannot take it though the criminal court. The lady would have to file a complaint and have the state press charges.

I'm not sure why that would be helpful in the arbitration of these issues. Presumably, the claimant will be able to prove that the acts occurred at the lower standard of proof than in the criminal courts. Sure, it would be real helpful to have a conviction on the exact point, but it is purely a luxury. If the person cannot prove the act occurred to an arbitrator, then they are going to have big problems and unlikely to be able to prove a conviction anyhow.

I would have approached this by arguing that this conduct is not arbitrable. That it is not covered by the agreement. I would have argued that sexual assault/harassment is not a "workplace dispute," that the agreement was designed to address disputes about pay, time off, hours, etc. This would depend heavily on what the agreement actually said (and I haven't seen it), so this avenue may not be available. But in the past when I have been successful getting out of arbitration, it has been because I've been able to convince courts that the subject matter in question is not subject to the agreement.
posted by dios at 9:28 AM on February 10, 2009 [2 favorites]


thanks, dios
posted by Navelgazer at 11:03 AM on February 10, 2009


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