I take back any bad thing I’ve ever said about Sen. Al Franken, DFL-Minn.
Why do I do this? Because in his brief tenure in office, Franken has shown himself to be exactly the kind of senator we need more of — bright, driven, and possessed of a sense of justice. He’s not getting things done by grandstanding or being a comedian; he’s getting things done by writing good legislation and getting it passed.
Take the case of Jamie Leigh Jones. Please.
You probably remember the case of Jamie Leigh Jones, the woman who was raped while working for KBR in Iraq. After reporting the rape, KBR responded to this grievous act by imprisoning her in a shipping container, so that she couldn’t tell anyone. When she finally convinced a guard to give her a cell phone, she managed to get a call to her dad in Texas, who worked with Rep. Ted Poe, R-Tex., to get her home. KBR responded to the actions of its employees by banning cell-phones.
Jones was unable to prosecute her assailants, so she attempted instead to sue KBR. But because her contract provided for arbitration for any workplace disputes, she was unable to; her only route for compensation was arbitration, a process that is a) better used for minor contract disputes, as opposed to cases of rape and false imprisonment, and b) decidedly tilted in favor of employers. She’s made some headway — the 5th Circuit Court of Appeals recently ruled that her case should be handled outside of arbitration — but that’s headway for her, and it’s only come after four years of legal fighting. Any woman — or man — who lives outside the 5th circuit who is similarly treated will have to start from scratch.
On Monday, Franken worked to extend those protections, when he successfully attached an amendment to the 2010 Defense Appropriations bill that would defund contractors “if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.”
Franken’s speech on the floor was spot on:
Theres a lot of horrible in there, but the nut graf (which I ganked from ThinkProgress) is as follows:
The constitution gives everybody the right to due process of law … And today, defense contractors are using fine print in their contracts do deny women like Jamie Leigh Jones their day in court. … The victims of rape and discrimination deserve their day in court [and] Congress plainly has the constitutional power to make that happen.
It would be nice to think that this sensible amendment was simply passed on a voice vote, all members of the Senate opposing the idea that someone who was raped and imprisoned would be prevented from seeking justice. Alas, that was not the case; the amendment passed 68-30, with all Democrats (save Robert Byrd and Arlen Specter, who did not vote) and 10 Republicans voting in favor, and 30 Republicans — 75 percent of the caucus — opposed.
The list of pro-rape Republican senators is as follows: Alexander (R-TN), Barrasso (R-WY), Bond (R-MO), Brownback (R-KS), Bunning (R-KY), Burr (R-NC), Chambliss (R-GA), Coburn (R-OK), Cochran (R-MS), Corker (R-TN), Cornyn (R-TX), Crapo (R-ID), DeMint (R-SC), Ensign (R-NV), Enzi (R-WY), Graham (R-SC), Gregg (R-NH), Inhofe (R-OK), Isakson (R-GA), Johanns (R-NE), Kyl (R-AZ), McCain (R-AZ), McConnell (R-KY), Risch (R-ID), Roberts (R-KS), Sessions (R-AL), Shelby (R-AL), Thune (R-SD), Vitter (R-LA), Wicker (R-MS).
Obviously, the amendment still has to go through conference committee, but one suspects its future is bright; certainly, the House is unlikely to water this down. And for most people, that’s a good thing; justice demands that those who are egregiously wronged are able to sue for redress. Yes, most Senate Republicans may view the idea of allowing lawsuits to be quaint, especially when compared to corporate profits. But most humans recognize what happened to Jamie Leigh Jones to be an unconscionable crime, and there is nothing quaint about making sure it never happens again.
Common sense and respect for ordinary Americans, we need a hundred more Frankens.
If the situation (I’m talking about the effects of the bill, not what happened in Iraq) is as you describe I fail to see why this bill would not pass unanimously.
who determined arbitration decidedly favors employers? sounds suspicious because if you can show evidence of bias you have grounds to vacate an arbitration award thru the courts. you never actually give up your right to go to court, as is obvious here since the courts took her case, making this amendment moot for Jones.
this amendment sounds merely symbolic.
i hope the women remember the ones that voted against this come next election!i can’t believe there are that many for rape.they have no common sense,what if it was their wife or daughter?they must be ready to change religon,where you always blame the woman and disown her!i can’t believe what the republican party has become since bush took office.they should be named RUSH.
RonF,
The 30 Republican senators opposed the amendment because they consider it an interference in the companies’ ability to form contracts with their employees.
Manju,
who determined arbitration decidedly favors employers?
Empirical evidence (arbitrations more often result in a decision that goes the employer’s way than in a decision that goes the employee’s way) and the way arbitration is set up. Generally, the employer as a large corporation with hundreds or thousands of employees will be a repeat player at arbitration, while the employee is not. Therefore, if the arbitrator wants to be selected more than once, it’s in the arbitrator’s interest to favor the corporation, not the individual schmuck. This type of systemic bias is wholly insufficient to get an arbitration award thrown out; you have to be able to point to specific evidence of bias in the particular case (e.g. the arbitrator having personal ties to one of the parties). The same effects hold in consumer arbitration. I’m pro-arbitration, but only when it’s between two equal parties (e.g. a divorcing couple, or a large commercial arbitration between two sophisticated parties), not between a schmuck who bought a defective computer and the large corporation that hires the same arbitrator over and over.
you never actually give up your right to go to court, as is obvious here since the courts took her case, making this amendment moot for Jones. this amendment sounds merely symbolic.
Nope, because
(1) if you refuse to go to arbitration and arbitration is mandated in your contract, you’ve breached your contract.
(2) the courts didn’t immediately take the underlying case (her suit against KBR); instead, after years of litigation, the 5th Cir. ruled that her cause of action could be filed in court. In the meantime, I’m guessing that evidence has disappeared, witnesses gone out of contact, etc. Justice delayed can be justice denied.
(3) of course the amendment is moot for Jones, just as the Lily Ledbetter Act was moot for Ledbetter. Some people give a shit about other human beings’ welfare, particularly human beings who will go through the same troubles they’ve had, and will advocate for legislation even if it’s too late for their own case. The amendment can’t help Jones now, but it can help other people who get into the same situation. Companies that want government contracts won’t be able to mandate arbitration for disputes of this type. That’s not just symbolic — which is why 30 Republican senators voted against the amendment.
Did all of the Republican women support the amendment? I’m not so familiar with the names to be able to tell from that list. I notice Snowe and Collins are not on the “no” list, but I’m not sure if there are others…
Every female Republican Senator (all 4 of them) voted for Franklin’s amendment. (In contrast, only 6 out of 36 male Republicans voted for it.)
but if the arbitrator heard an earlier case bought by that corporation, wouldn’t that be grounds for vacating the judgement? the way I’ve seen arbitration work, the arbitrators have to disclose any conflict and each side gets to knock off arbitrators they don’t like.
This sounds weird, How do you enforce that? She refused to go to arbitration and the court agreed so there is no breach of contract. If they upheld the arbitration clause she would still retain the right to appeal the decision to the courts. that can’t be written away contractually.
she was unable to prosecute them criminally because she doesn’t know who they are, not because of anything in the contract (not that you said that but it appears implied). she still has the route of criminal prosecution of kbr available, no?
little more than 2yrs:
“On May 16, 2007, Jones filed a civil lawsuit against KBR and former parent corporation Halliburton.[2] KBR requested a private arbitration, and claims this is required by her employment contract. On September 15, 2009 the 5th Circuit Court of Appeals in New Orleans ruled Jamie Leigh Jones’ federal lawsuit against KBR and several affiliates can be tried in open court.”
that appears to have little to do with the 2yr delay, plus arbitration usually happens quicker than court, so it gives you less time to destroy evidence:
“In May 2007, a State Department diplomat recovered the rape kit from Halliburton and KBR. However, notes and photographs taken by Schultz (of Jones the morning following her rape) were missing, undermining any chances of bringing the case through the criminal courts”
source: wiki
but if the arbitrator heard an earlier case bought by that corporation, wouldn’t that be grounds for vacating the judgement?
No more than a judge has to recuse him/herself from hearing a case against a corporation when they’ve heard an earlier case.
This sounds weird, How do you enforce that?
By forcing an employee to go jump through legal hoops. Jones has had to argue her case all the way up to the 5th Circuit for the chance just to sue. Most people don’t have the financial and emotional wherewithal to do so, and are forced into arbitration right off the bat.
jeff:
the way i’ve seen arbitration work is the AAA provides a list of arbitrators who don’t appear to have any conflicts. neither side knows their previous rulings as far as i can tell (maybe my lawyer did the research) but you get to knock off anyone you don’t like. once the arbitrators are chosen they have to disclose any conflicts and then if you don’t like the conflict you get to disqualify them again.
in my case it was a large commercial arbitration but we were the less powerful party. indeed the defendant was a highly connected bush admin institutional investor who has done some despicable things in the past and also some stuff during the arbitration that allowed us to vacate the award on appeal.
anyway, we always had an arbitration clause in our contracts because we thought it protects us as the smaller player. its cheaper and quicker and you’re not at the mercy of random judges. but if it really does favor larger institutions, i may reconsider.
for the record, i don’t think this law is bad it just doesn’t strike me as a big deal. you already have the criminal courts available to you no matter what, you can always ask the courts to take your case despite an arb clause in your contract, and even if you lose in arb you can still appeal to the courts. whether or not arb is biased towards corps i haven’t the slightest.
i speculate the real advantage of arb for KBR is that everything is kept private, so no bad publicity. conversely, the accuser would probably benefit from apublic trial, since the judge might be influenced by public anger, like apparently the Polanski judge was. so i don’t blame her for preferring an open public trial. gotta use every advantage you can.
i hope the women remember the ones that voted against this come next election!i
I hope all citizens of those states remember this vote.
but if the arbitrator heard an earlier case bought by that corporation, wouldn’t that be grounds for vacating the judgement? the way I’ve seen arbitration work, the arbitrators have to disclose any conflict and each side gets to knock off arbitrators they don’t like.
I’m not aware of a prior arbitration that involved one of the same parties being considered a conflict of interest. Can you provide an example of this occurring?
She refused to go to arbitration and the court agreed so there is no breach of contract. If they upheld the arbitration clause she would still retain the right to appeal the decision to the courts. that can’t be written away contractually.
They did uphold the arbitration clause. Read the 5th Circuit or district court opinions: “the district court concluded there was a valid agreement to arbitrate, rejecting Jones’ contentions that: there was no meeting of the minds; the arbitration clause was fraudulently induced; the provision was contrary to public policy; and enforcing the agreement would be unconscionable. It also rejected Jones’ alternative contention that, pursuant to the equitable doctrine of unclean hands, the arbitration agreement should not be enforced.”
Where she won was that the courts said a few of her claims were not within the scope of the arbitration agreement. You can be sure that KBR has hastily rewritten their standard contract to make the scope of the arbitration agreement even more expansive.
Moreover, appeals of arbitration decisions are extremely limited. Once you have submitted yourself to arbitration, the courts will uphold the decision even if the arbitrator appears to have misunderstood the law she was purporting to apply or made errors of fact. You have to show corruption, fraud or misconduct in procuring the award, partiality of an arbitrator who was appointed as a “neutral” (often arbitration will be done by a panel, where each side picks one arbitrator and the third is supposed to be neutral), or the arbitrator went beyond the matters that the parties had agreed to arbitrate (e.g. if I agree to arbitrate the property division in my divorce, but the arbitrator issues a decision about custody as well).
she was unable to prosecute them criminally because she doesn’t know who they are, not because of anything in the contract (not that you said that but it appears implied). she still has the route of criminal prosecution of kbr available, no?
I’m not talking about criminal prosecution, which is irrelevant to an arbitration agreement.
plus arbitration usually happens quicker than court, so it gives you less time to destroy evidence:
Depends on the arbitration. With civil litigation, it’s in the judge’s self-interest to get cases disposed quickly, so the judge can go home at 4:30pm. In an arbitration, the arbitrators may be paid on an hourly basis.
Ha, Hill v. Gateway 2000….we just read that a month ago in contracts, immediately followed by Klocek v. Gateway which points out what a douche Easterbrook is. (Yes, I’m a 1L.)
Sorta surprised me to see McCain voting against it…after all, isn’t he against torture? Man, has he rolled over.
Good on Senator Franken!!
when i was in arbitration with the AAA you had to disclose any, even minor, relationships. i’m pretty sure this would qualify as a disclosurable event,. Then you get to disqualify the arbitrator if you don’t like the relationship.
my experience as different, but i gather this is more or less correct. but this works both ways since since it prevents the big money party from appealing ad nauseam.
there’s also the process of getting the hearing date. arb appears quicker and cheaper. my arbitrators appeared to want to speed things up. whereas the other side tried t drag things on and kept getting rebuffed. but as i mentioned, if you can demonstrate its really worse off for the little guy, I’d reconsider having these things in my contacts.
when i was in arbitration with the AAA you had to disclose any, even minor, relationships.
Sure, but where was “relationship” defined to include “previously arbitrated dispute involving this party”? As Jeff says, a judge who has had one of the litigants before him previously doesn’t have to announce that fact. Why do you think an arbitrator does?
The IBA’s guidelines, which were formulated in response to complaints and represent a cautious, pro-disclosure approach, recommend disclosure of previous arbitrations only if “The arbitrator has within the past three years received more than three appointments by the same counsel or the same law firm.” If you only do one arbitration a year, you could have 100% of your arbitration business coming from the same law firm, and still never have to disclose that to opposing counsel.
that rule appears to apply to relationships between an arbitrator and another arbitrator or council, not to one of the parties.
this confirms my experience. even the last part since i don’t recall knowing how the arbitrators ruled in previous disputes.
that rule appears to apply to relationships between an arbitrator and another arbitrator or council, not to one of the parties.
Counsel, i.e. the attorney for the parties. As you probably noticed, the selection of arbitrators is done primarily by the attorneys for the parties, and as I said, under the IAB rules you could have the same law firm giving you arbitration business each year without having to disclose that fact.
I haven’t worked on an arbitrated matter that was subject to the California Arbitration Act, but I’d be cautious of assuming that the CAA is representative of arbitration rules, considering that the source you cite begins its discussion of it by saying, “The California Arbitration Act has micro-managed the disclosure obligation to near absurdity.”
even the last part since i don’t recall knowing how the arbitrators ruled in previous disputes.
Then you must not have been under the rules you’re citing, since California Code Of Civil Procedure Section 1281.9 (a)(4) states,
only, we were speaking of corporations having an advantage b/c they litigate more than a random person. law firms, in contrast, would cancel each other out since they all litigate a lot, giving neither side an advantage.
I didn’t read that piece as pertaining only to the CAA, since itdeosn’t begin its discussion in reference to california, rather that appears to be an aside.
I wasn’t in california, but i don’t think the rules cted were dependent on being in CA. the author says its a per se rule. I checked the AAA website and i find it hard to interpret their rules as allowing withholding relationships from past arbitrations:
just found this, even better i think:
Puiblic Citizen has a great FAQ page about Arbitrators, why big business prefers them to the courts, and whether or not they’re biased.
—Myca
law firms, in contrast, would cancel each other out since they all litigate a lot, giving neither side an advantage.
No, the kind of law firms that are hired by large corporations are going to be repeat players at arbitrations a lot more often than are the typical employment law individual plaintiffs’ firms. The big plaintiffs’ firms (your Milberg Weiss et al., the kinds of places with over 100 attorneys) do class actions almost exclusively; they rarely piddle around with mere individuals.
I didn’t read that piece as pertaining only to the CAA, since itdeosn’t begin its discussion in reference to california, rather that appears to be an aside.
The specific sentence you blockquoted @18 actually begins with (for some reason I’m sure I can’t guess, you decided to begin your quote halfway through): “The authors of the California statute focused on three-additional areas of disclosure: an arbitrator must disclose personal knowledge of disputed facts concerning the proceeding; an arbitrator must disclose prior and pending matters…”
So I don’t know what’s going on with your reading that you believed the statement you blockquoted was general to all states rather than particular to California. I don’t think the author of the article could have been much clearer than by saying, “The authors of the California statute…” and earlier citing Cal. Code Civ. Proc. 1281.9.
the author says its a per se rule.
Could you define for me what you think “per se” means? It doesn’t mean “true in all jurisdictions.”
In your AAA source, note that those are guidelines and there’s no provision for making them binding. Really the only serious enforcement mechanism against an arbitrator’s malfeasance is vacatur, and a failure to disclose having previously been an arbitrator for one of the parties/ counsel is not included among the omissions that could lead to vacatur, according to your own source:
Disclosure by arbitrators is often not as full and frank as one might desire, precisely because of the lack of consequences in the form of vacatur, which is why the California statute is seen as having “micro-managed the disclosure obligation to near absurdity.” There’s a gap in legal ethics between “what would be really awesome and ideal for you to do” and “what you will get in trouble if you don’t do.” The joke about the Multistate Professional Responsibility Exam, which is multiple choice, is that you can get through it just by crossing off the most ethical answer (i.e. the one that would maximize disclosure), the least ethical answer, and then guessing between the two remaining choices.
PG:
suffice to say I’ve demonstrated that arbitration rules require arbirtors to disclose relationships from prior arbitration’s, which was our original disagreement .
As to whether arbitrators routinely disregard this requirement i haven’t the slightest. Feel free to present evidence.
I can say personally my arbitrator did. he didn’t disclose a partner at his law firm sat on the board with the major investor, a well connected private equity firm, of the company we were suing. however, the courts vacated the judgement disregarding the AAA own speculation of what may happen.
he didn’t disclose a partner at his law firm sat on the board with the major investor, a well connected private equity firm, of the company we were suing.
Uh, that’s not the situation you’ve been arguing about. You’ve been saying that arbitrators are required to disclose all prior and pending arbitrations that have involved any of the parties that would come before them in the current arbitration. So your anecdote provides zero support for your point, and would be subsumed under “Business dealings which are significant, ongoing, or regularly conducted,” as both a partnership and a board membership are business relationships that are significant, ongoing AND regularly conducted. Where’s your example of a court vacating an arbitration award based on the arbitrator’s failing to disclose that he’d previously arbitrated a matter involving one of the parties?
given that we don’t even know if arbitrators routinely fail to disclose these relationships, a disclosure that until now you didn’t even know was required, its a pretty high bar for me to then find cases where this failure resulting in the courts overturning a decision.
Manju,
Again, your concept of “required” is pretty questionable. You’ve found one state that says arbitrators should disclose, and the AAA saying arbitrators should disclose in the same document where they say that it’s not an omission that results in vacatur. I’ve already explained that in legal ethics, what someone says you should do is not the same thing as what you have to do. So no, I don’t think it’s a high bar to expect you to find a case where there were actual consequences for such an omission, rather than just some ethics guru saying, “But you should disclose this…”
Its a little cart before the horse no? we don’t even know if these omissions are even occurring
Manju,
If there are omissions of information that definitely would get penalized with vacatur (as in your anecdote where a significant business relationship was not disclosed by the arbitrator), don’t you think there would be omissions of information that the AAA doesn’t include among those that would be penalized by vacatur?
PG:
I think it depends. there is no hard and fast rule. In my own case, we didn’t think we had a real shot because the relationship was indirect, not between the arbitrator and the party, rather the arbitrators colleague and the parties financier.
my lawyer speculators the court thought the outcome was so unfair that they just simply found a reason to vacate.
You said it was “the major investor, a well connected private equity firm, of the company we were suing” — private equity firms usually take an equity position rather than a debt position, so I assume they weren’t merely the financiers (like a bank), but rather were owners of the party in the matter. If the arbitrator’s law firm partner was on the board, he almost certainly held shares in the private equity firm, and thereby in the party before the arbitrator. So the arbitrator was in the position of deciding a matter for a company in which his partner had an ownership stake.
I think it depends. there is no hard and fast rule.
Yeah, I kind of thought that was what I was saying about most disclosures.
PG:
Yes, they owned the company thru convertable debt. The partner sat on the board of of an organiztion on which the major partner of the PE firm also sat, so he had no ownership stake in the defendant.
Well, my experince is the law is something of a crapshoot. Wheter we can extend that out to discloures, i’m not sure, but I haven’t seen any evidence that we can. I’m open to it though, if i thought the arbitration process was unfair to the little guy, I’d stop using it.
Yes, they owned the company thru convertable debt. The partner sat on the board of of an organiztion on which the major partner of the PE firm also sat, so he had no ownership stake in the defendant.
Wait, so the arbitrator (A) was partners in the law firm with B, who sat on the same board as C, who was the major partner of the private equity firm?
That does seem like a stretch. That means A didn’t have a direct relationship with C or anyone else who had a stake in the outcome of the arbitration. Which court were you in that overturned the arbitrator’s decision on that nondisclosure?
Well, my experince is the law is something of a crapshoot. Wheter we can extend that out to discloures, i’m not sure, but I haven’t seen any evidence that we can.
Arbitration is part of law, and disclosure in arbitrations is therefore part of law. If you’re saying that a failure to disclose was used as a pretext to vacate, that doesn’t provide much support for the idea of a binding requirement to disclose.
Yeah, it created a bit of a stir. New York Court of Appeals .
.
well, this was a tenuous relationship. a realtionship due to a prior arbitration is more direct.
Yeah, it created a bit of a stir. New York Court of Appeals .
Did this involve as a party a guy named Bright? (Trying to be vague in case you don’t want your business discussed here.) Otherwise, are you thinking of the Second Circuit Court of Appeals (which is a federal court based in New York), rather than New York’s highest state court?
No. We did go thru a bunch of appeals until we finally got the reversal. thought it was the NY court of appeals but i may be wrong. In court, as oppossed to arbitration, i didn’t have to testify or even show up so i may have the details wrong.
I’d supply you the details but i would like to keep it private…just to be discreet as we still have some legal issues pending.
The Daily Show take on this, complete with the same senators who voted no here because it’s not the government’s job to interfere with private contracts going apeshit over sending one more cent to ACORN.
Also wanted to add, since I see it came up earlier, my understanding was that she did not have the criminal courts available to her because private contractors are exempt from Iraqi law and the U.S. would have no jurisdiction over a crime that happened in another country. That’s why she needs a civil remedy.
chingona,
It’s not my area of law, but apparently the U.S. claims jurisdiction over any crime by or against a U.S. national (citizen) that occurs in a place where no other government has jurisdiction. If the contractors are exempt from Iraqi law, then they fall under this provision for “special maritime and territorial jurisdiction of the United States,” 18 U.S.C. 7 (7): “Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.”
Manju, the contractual obligation that she had to uphold was that she could not sue her employer. The court case she presented was disputing her inability to sue regardless of whether she signed a contract. The court was not hearing the case of the incident in Iraq, they were hearing a dispute over the legality to deny a person the right to sue. During the case, the story of what happened in Iraq was used as supporting testimony to provide a real world example. The court case was not a trial for prosecuting her company for the crime. So this bill by Franken holds much substance and is completely relevant. By its design, it works to prevent this type of situation from happening again without proper consequences and enforces the ideal that no one can “sign away their basic civil rights”. In an exagerrated example, it prevents people from signing themselves into slavery or signing a contract mandating they have to vote for one particular candidate against their will. The tricky part for the US government is enforcing the law on foreign soil. So hitting the companies where it hurts (their wallets) provokes the companies into removing the exclusive arbitration clause if they want to do business with the largest contracting agent in our country… the US government.