On May 16, I wrote an entry titled Justice and Arbitration Fairness. The post discussed the impact of forced arbitration clauses upon families who have suffered personal injuries or damages from corporate wrongdoing.
Since that post, the U.S. Supreme Court has issued several decisions which clearly reveal the destructive impact of arbitration upon justice. Welcome to the age of corporate protection for injuries and deaths! If you believe in fairness and justice, the recent trend in our laws is a big deal that will harm workers, consumers, and families.
How does our Supreme Court view arbitration. Let’s first look at the case of Oxford Health Plans LLC v. Sutter (June 10, 2013) which involved the decision of an arbitrator concerning a contract. Do you believe arbitrators have to be fair? Do you believe arbitrators have to follow the law? Do you believe arbitrators have to give you a fair hearing? If you answered yes to any of those questions, then think again. Here’s what our Supreme Court said in Oxford Health Plans:
The arbitrator’s construction holds, however good, bad, or ugly.
If you are forced to arbitrate your injury or damage claim before an arbitration group chosen by the corporation, this should be a clear warning to you. You will probably be stuck with the arbitrator’s decision no matter how ugly (and no matter whether it was the correct legal decision).
It gets worse. Just days later, our Supreme Court decided American Express Co. v. Italian Colors Restaurant (June 20, 2013). The group Public Justice refers to this decision as the "worst supreme court arbitration decision ever." In American Express, the Supreme Court basically said that an arbitration clause must be enforced even if it effectively means the injured consumer or business is unable to pursue justice due to the cost required to arbitrate.
Where are we now? We now have a judicial system that allows corporate defendants to use forced arbitration against consumers. These forced arbitration clauses often require you to arbitrate disputes before an arbitrator picked by a corporate group. Then, it really doesn’t matter if the arbitrator makes an "ugly" and unjust decision. You are stuck with it. Look at the bright side — The cost of arbitration may be so great that you effectively can do nothing anyway.
It’s time to insist that your Congress change the Federal Arbitration Act to protect workers, consumers, and families. We must protect and preserve our justice system for all citizens.