The Democrat Thread

[Balta1701]

As someone who has been on both sides of those cases, it hurts the company more to defend those discrimination suits individually, and it's much more beneficial to the individual to get their own separate day in court. It might be EASIER for them, but in terms of getting some kind of decent compensation, again it's getting that .48 cent recovery for your $50 dollar loss. When you throw people into a class it makes everyone the same, and we all know circumstances are never the same.

Doesn't the individual also have to be able to afford his or her day in court?

[Jenksismyhero]

This glosses over the fact that it protects corporations who screw over thousands of people a little bit, say $30 each, because no one is going to file a suit over an individual claim of $30. By preventing class-action lawsuits, you're eliminating the ability of millions of people to get recompense for minor wrong-doings by corporations.

 

Actually no, that's why they have arbitration. It's a more simple and cost effective way to resolve these small claim issues.

 

Look, class actions are bulls*** inventions of lawyers. You have 10 people with similar claims, you tell them to go out and find other people. Next thing you know you've got 100 people claiming the same thing and the pot of money you can get for representing all those people goes up. It wasn't invented to help consumers fight for scraps.

[StrangeSox]

As someone who has been on both sides of those cases, it hurts the company more to defend those discrimination suits individually, and it's much more beneficial to the individual to get their own separate day in court. It might be EASIER for them, but in terms of getting some kind of decent compensation, again it's getting that .48 cent recovery for your $50 dollar loss. When you throw people into a class it makes everyone the same, and we all know circumstances are never the same.

 

But what are the odds of individuals pursuing arbitration on their own without a class action lawsuit to follow? Minimal. As Byers put it:

 

"In general, agreements that forbid the consolidation of claims can lead small-dollar claimants to abandon their claims rather than to litigate," he wrote. "What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?"

 

While individuals in a class-action suit may see minimal financial compensation, the more important effect is that a fraudulent corporate practice is stopped. Without class action abilities, how will this happen?

[Jenksismyhero]

Doesn't the individual also have to be able to afford his or her day in court?

 

99.9% of discrimination cases are contingency, so it costs zero dollars (with the potential to have to pay back some costs if you don't get anything)

 

Even still, if you can't afford it all courts have systems in place to waive the filing fees.

[StrangeSox]

Actually no, that's why they have arbitration. It's a more simple and cost effective way to resolve these small claim issues.

 

Look, class actions are bulls*** inventions of lawyers. You have 10 people with similar claims, you tell them to go out and find other people. Next thing you know you've got 100 people claiming the same thing and the pot of money you can get for representing all those people goes up. It wasn't invented to help consumers fight for scraps.

 

I was party to a class-action suit against United Health Care. Sure, I only got back $150 while the lawfirm took in 8 or 9 figures, but UHC also stopped its fraudulent (maybe not the best word?) practices that were unfairly costing their customers millions of dollars collectively. So even though my dollar compensation was low, the policy change was important.

[Soxbadger]

Its kind of laughable to believe that arbitrators are more likely to side with a big corp than say a judge.

 

To explain that point, lets use the reality of Cook County Courts versus arbitration *well use American Arbitration Association as an example).

 

In Cook County, if you go there enough, you know every judge. Every judge knows who the law firms are, they know who the heavy hitters are, and they give deference to the big players. Furthermore, a case in Cook County is going to take at minimum a year, if not 2 or more.

 

Conversely in AAA you get a list of arbitrators. Both parties rank who they want, you then get selected one. You have no real interaction with the arbitrator until the arbitration. Arbitration generally takes less than 6 months.

 

Arbitration generally costs more, to file with AAA I think the minimum is $650. Cook County the max is about $325.

 

If you signed a contract that states you must go to arb before going to court, why would that not be enforceable?

[Jenksismyhero]

I was party to a class-action suit against United Health Care. Sure, I only got back $150 while the lawfirm took in 8 or 9 figures, but UHC also stopped its fraudulent (maybe not the best word?) practices that were unfairly costing their customers millions of dollars collectively. So even though my dollar compensation was low, the policy change was important.

 

Do you really believe that lawsuits and verdicts (or settlements) stop those practices?

[StrangeSox]

Do you really believe that lawsuits and verdicts (or settlements) stop those practices?

 

Stop trying to bait me into "smash the system" cynicism.

[Jenksismyhero]

Its kind of laughable to believe that arbitrators are more likely to side with a big corp than say a judge.

 

To explain that point, lets use the reality of Cook County Courts versus arbitration *well use American Arbitration Association as an example).

 

In Cook County, if you go there enough, you know every judge. Every judge knows who the law firms are, they know who the heavy hitters are, and they give deference to the big players. Furthermore, a case in Cook County is going to take at minimum a year, if not 2 or more.

 

Conversely in AAA you get a list of arbitrators. Both parties rank who they want, you then get selected one. You have no real interaction with the arbitrator until the arbitration. Arbitration generally takes less than 6 months.

 

Arbitration generally costs more, to file with AAA I think the minimum is $650. Cook County the max is about $325.

 

If you signed a contract that states you must go to arb before going to court, why would that not be enforceable?

 

And the kinds of arbitration that are in these contracts are not like civil arbitration. My understanding was that they are much more consumer friendly because tons of case law has been produced that basically stopped the practice of making arbitration meaningless to people. I seem to recall there being a big case against IBM with that. I thought it's more like "fill out a form" type complaint that, if necessary, you can get a hearing before someone. The corporation might even have to foot the bill.

[StrangeSox]

Also let's not lose the irony of states rights conservatives favoring a decision that has federal law trumping state law and generally more federal-oriented liberals decrying it.

[StrangeSox]

If you signed a contract that states you must go to arb before going to court, why would that not be enforceable?

 

Well that was the crux of the case, Cali apparently has had a law that allows such agreements to be declared "unconscionable" if one party is perceived to be at a significant disadvantage.

[Jenksismyhero]

Also let's not lose the irony of states rights conservatives favoring a decision that has federal law trumping state law and generally more federal-oriented liberals decrying it.

 

Every federal law trumps state law. It's called the Supremacy Clause.

 

 

[Balta1701]

Every federal law trumps state law. It's called the Supremacy Clause.

Nullification! 10th Amendment!

[StrangeSox]

Every federal law trumps state law. It's called the Supremacy Clause.

 

Well, should phrased that more partisan, conservatives' interpretation of a federal law trumps state law when a more 'conservative' reading of of FAA may have allowed the state's law to stand.

[StrangeSox]

Is Byers' (and the lower court's) argument here wrong:

 

"I suspect that it is true even here, for as the court of appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concepcions' arbitration worthwhile) simply by paying the claim's face value, such that the maximum gain to a consumer for the hassle of arbitrating a $30.22 dispute is still just $30.22. What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claims?"

 

edit: that's more of an ethical/moral argument for the way law ought to be, not necessarily the way law is. Could be Scalia's made the correct interpretation of the law here, it's just that we have a bad law on the books.

Edited April 27, 2011 by StrangeSox

[StrangeSox]

I should add too that the blogs reading of the arbitration clauses is wrong (mostly). Those arbitration clauses are non-binding arbitration. So yeah, technically you have to go through a process first, but if you're not happy with the result you can still file a suit.

 

Are you sure about that? My understanding is that most if not all of these forced arbitration agreements are binding.

[StrangeSox]

Also, sorry for the frantic posting, but I wanted to add that the whole basis for this suit sounds pretty ridiculous, suing AT&T because you had to pay taxes on your free phone?

[Jenksismyhero]

btw, i just started reading the opinion. Is this really THAT bad of a system:

 

"The revised agreement provides that customers may initiate dispute proceedings by completing a one-page Notice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submissions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more-over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500minimum recovery and twice the amount of the claimant’s attorney’s fees."

 

1) you can file a claim and maybe get it resolved without doing anything

 

2) you can file a claim for arbitration which must be paid for by the company, in your area, and in whatever form you want it to proceed (person, phone, writing)

 

3) that you can still bring a claim to court (i.e., it's not arbitration or nothing)

 

4) that the company can be penalized with punitive damages

 

5) that they can't recover their attorneys fees even if they win

 

6) that if you "win" (i.e., if att gives a s*** offer and you get more) you're guaranteed your 10k (since all this applies to 10k and under claims...i.e., any claim you guys are worrying about) because you'll get 7500 and your attorney gets paid his 1/3 fees.

Edited April 27, 2011 by Jenksismybitch

[Jenksismyhero]

Is Byers' (and the lower court's) argument here wrong:

 

 

 

edit: that's more of an ethical/moral argument for the way law ought to be, not necessarily the way law is. Could be Scalia's made the correct interpretation of the law here, it's just that we have a bad law on the books.

 

But that's the damage and that's all the plaintiff's are entitled to get. So yeah, if at&t paid them what they wanted to begin with, why should they get 7500 or whatever? The 7500 is a penalty for giving an initial s***ty offer.

[StrangeSox]

Class action suits automatically raise consumer awareness that they may have been defrauded. That alone is a substantial impact.

[Jenksismyhero]

Are you sure about that? My understanding is that most if not all of these forced arbitration agreements are binding.

 

I don't know for sure, but I would highly doubt it given the requirements the company has to go through to have the arbitration system. That would effectively be circumventing your right to file suit in a court. Now maybe at some point you sign that agreement...but then you still have the option of filing your claim in court. Which again, in these types of cases, forces at&t to pay what you want because of the cost of defending itself in court. (i.e., they're going to pay out the 30.22 instead of paying the hundreds just for their attorneys to appear in the case)

[Jenksismyhero]

Class action suits automatically raise consumer awareness that they may have been defrauded. That alone is a substantial impact.

 

Eh. Maybe. There's no class action suit against Sony but I know they f***ed up royally and gave hackers all my information.

[StrangeSox]

Expanded version of Byers' comment explaining why limiting class-actions is pro-big business:

In general agreements that forbid the consolidation of claims can lead small dollar claimants to abandon their claims rather than to litigate. I suspect that it is true even here, for as the Court of Appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concepcions' arbitration worthwhile) simply by paying the claim's face value, such that "the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22." What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? In California's perfectly rational view, non class arbitration over such sums will also sometimes have the effect of depriving claimants of their claims (say, for example, where claiming the $30.22 were to involve filling out many forms that require technical legal knowledge or waiting at great length while a callis placed on hold). Discover Bank sets forth circumstances in which the California courts believe that the terms of consumer contracts can be manipulated to insulate an agreement's author from liability for its own frauds by "deliberately cheat[ing] large numbers of consumers out of individually small sums of money." Why is this kind of decision--weighing the pros and cons of all class proceedings alike--not California's to make?

 

Am I going to go through all of the trouble of arbitration for $30? Probably not. Will I sign onto a class action suit I believe is legitimate that might get me $10 after lawyers' fees? Absolutely. And AT&T's going to pay a lot more if they settle that suit or if they're ruled against than a handful of $30 claims.

 

Class actions can also be subject to having damages tripled if I'm remembering a story I heard on the Walmart discrimination case recently.

 

[StrangeSox]

I don't know for sure, but I would highly doubt it given the requirements the company has to go through to have the arbitration system. That would effectively be circumventing your right to file suit in a court. Now maybe at some point you sign that agreement...but then you still have the option of filing your claim in court. Which again, in these types of cases, forces at&t to pay what you want because of the cost of defending itself in court. (i.e., they're going to pay out the 30.22 instead of paying the hundreds just for their attorneys to appear in the case)

 

It appears the arbitration is legally binding.

 

http://www.scotusblog.com/?p=21931

[StrangeSox]

Eh. Maybe. There's no class action suit against Sony but I know they f***ed up royally and gave hackers all my information.

 

Will you bother pursuing arbitration against them? Do you have the legal expertise (ok, ok, you're a bad person to ask this sort of hypothetical to, but pretend you're not a lawyer like 99% of people) to determine you've been wronged and present a strong case? Or will you go about your business, even if Sony has f***ed you over?

 

How much more difficult is that for each individual than to simply be party to a class action?