The Democrat Thread

[Jenksismyhero]

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

 

 

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.

 

Lol, ah, so your argument is that you don't want to do any work to try and prove your claim. I get it. You should be a juror in Cook County. There's a gazillion people like you here.

 

[Jenksismyhero]

It appears the arbitration is legally binding.

 

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

 

We're talking about two things here. Arbitration decisions are legally binding yes, that's true. But in most case arbitration decisions are not the final resolution of the matter. They're more, hey lets talk with this guy and see what he thinks and maybe he'll help us reach a fair settlement. It's more of a neutral parties' recommendation for a resolution of the matter.

 

My point was that these arbitration systems are probably not binding on either party unless they've agreed to that arrangement beforehand. That might well be in the agreement you sign with these companies, I dunno. But they have to leave you the option of also filing a suit in court (before deciding to go to arbitration). My understanding was that a company can't force you to ONLY go through arbitration, with no other recourse.

Edited April 27, 2011 by Jenksismybitch

[Jenksismyhero]

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?

 

Have you ever demanded a refund at a restaurant? Have you ever submitted a defective/broken product under a warranty provision? I mean all you gotta do is say what happened and provide some evidence about what you're claiming. It can't be that difficult.

 

And i get your point about becoming aware of a fraud. But if you're not aware and you discovery it 10 years later, you're not precluded from still filing a suit. And if it's that bad then maybe it's worth getting a lawyer and asking for additional damages.

 

Also, I think reality sets in here to some degree with this situation and all legal situations. At some point there is the economics. I could be screwed by my mechanic out of a couple hundred bucks. There's no arbitration system, there's no class wide protection. I can either file suit or eat the cost. That's just life unfortunately. The hope is that the "market" (gasp!) informs people not to go to that business anymore and then they go out of business and the problem resolves itself.

[StrangeSox]

Lol, ah, so your argument is that you don't want to do any work to try and prove your claim. I get it. You should be a juror in Cook County. There's a gazillion people like you here.

 

Nope, the argument is that this decision makes it significantly less likely that corporations will be held accountable when they defraud consumers because the hurdle is that much higher.

 

We're talking about two things here. Arbitration decisions are legally binding yes, that's true. But in most case arbitration decisions are not the final resolution of the matter. They're more, hey lets talk with this guy and see what he thinks and maybe he'll help us reach a fair settlement. It's more of a neutral parties' recommendation for a resolution of the matter.

 

My point was that these arbitration systems are probably not binding on either party unless they've agreed to that arrangement beforehand. That might well be in the agreement you sign with these companies, I dunno. But they have to leave you the option of also filing a suit in court (before deciding to go to arbitration). My understanding was that a company can't force you to ONLY go through arbitration, with no other recourse.

 

Most consumer agreements include mandatory/forced arbitration that's legally binding as your only option. And now, you're forced to do it as an individual instead of as a class.

[StrangeSox]

Have you ever demanded a refund at a restaurant? Have you ever submitted a defective/broken product under a warranty provision? I mean all you gotta do is say what happened and provide some evidence about what you're claiming. It can't be that difficult.

 

That's a little more clear than what many class actions are about, which is the point. A defective product is pretty obvious, unfair advertising practices and monopolistic control or wide-spread gender discrimination are not such "duh, they owe me something here" issues.

 

And i get your point about becoming aware of a fraud. But if you're not aware and you discovery it 10 years later, you're not precluded from still filing a suit. And if it's that bad then maybe it's worth getting a lawyer and asking for additional damages.

 

That doesn't answer the problem of the likelihood of discovering the fraud, especially if its a complex legal claim.

 

Also, I think reality sets in here to some degree with this situation and all legal situations. At some point there is the economics. I could be screwed by my mechanic out of a couple hundred bucks. There's no arbitration system, there's no class wide protection. I can either file suit or eat the cost. That's just life unfortunately. The hope is that the "market" (gasp!) informs people not to go to that business anymore and then they go out of business and the problem resolves itself.

 

That doesn't really work as an argument against this ruling heavily favoring large corporations over consumers and small businesses. Again, recognition and knowledge of the fraud is much less likely.

 

[Rex Kickass]

How about live up to your promises?

 

As nice as it would be to see the President walk a picket line... (it would probably result in me becoming a yellow dog Dem for life), there are so many reasons why keeping a hyperbolic promise like that would be a bad idea.

[lostfan]

I still don't understand why they didn't provide a copy earlier, like a year ago earlier. I get that the WH didn't want to legitimize the issue, but after it became apparent that their refusal to come up with the certificate was leading to a decent amount of people (not just Republicans) questioning whether the speculation was true they should have produced it. As usual, the Dems are completely lousy at the PR game and have lost this battle. Trump gets to boast (wrongly of course) that he was the only one to force the WH to act and gained more support because of it. Obama meanwhile, gained nothing.

Why should he have to? No one else ever has and the other document is a valid document for anyone else who has ever had to prove their citizenship (including me). It was silly bulls*** that did not dignify a resoponse.

[kapkomet]

Why should he have to? No one else ever has and the other document is a valid document for anyone else who has ever had to prove their citizenship (including me). It was silly bulls*** that did not dignify a resoponse.

 

 

Yet, here we are, today...

[lostfan]

Yesterday I made an observation about Goodell's op-ed in the WSJ and it wasn't really appropriate to put in the NFL thread. Goodell's main argument was that the players want to f*** up the NFL and destroy everything about it that makes it competitive and great. The NFL's status quo has been a huge success because of its revenue sharing and keeping the teams on equal competitive footing, everybody having the same opportunity because of the draft and salary cap as long as they manage their teams competently, etc. This is... umm... "socialism." Then he was saying that letting the players remove all these rules and controls by decertifying their union (that's really not what the players are trying to do but that's beside the point), and that it would be like a survival of the fittest system where the big market teams will succeed. That's... wait for it... free market capitalism. I'm a free market kind of guy (just not to the point of it being a religion I blindly follow) and certainly don't endorse socialism, but the irony of Goodell arguing that a socialist-style system is great while a capitalist-style system would be an unbalanced disaster in the WSJ of all places was lost on most of the commenters there because a s***load of them were agreeing with him and siding with the NFL vs. the players, i.e. big business vs. workers.

 

Oh, for good measure, it only took about 2 pages for someone to mention that the judge who issued the ruling was an Obama appointee. As if all federal judges weren't appointed by the president.

[lostfan]

Yet, here we are, today...

I'd rather he had just ignored it, I was pretty amused by watching wingnuts foam at the mouth and try to distort reality. It was just kind of distressing that it was SO MANY of them.

[Jenksismyhero]

Nope, the argument is that this decision makes it significantly less likely that corporations will be held accountable when they defraud consumers because the hurdle is that much higher.

 

And as I've said before, you're fooling yourself if you think settlements or verdicts in class actions change practices. I'll buy your argument that class actions may inform customers of potential fraud, but I don't buy that class actions hold corporations accountable. Again, it's a lawyer or court invention that wasn't designed as a safeguard against corporate malpractice.

 

Most consumer agreements include mandatory/forced arbitration that's legally binding as your only option. And now, you're forced to do it as an individual instead of as a class.

 

Once you agree to that and once you've decided that you'd rather not go to court, yes. But it's not like companies force arbitration on you in lieu of other alternatives. And again, what was so awful about AT&T's arbitration system?

[Jenksismyhero]

That's a little more clear than what many class actions are about, which is the point. A defective product is pretty obvious, unfair advertising practices and monopolistic control or wide-spread gender discrimination are not such "duh, they owe me something here" issues.

 

What? No it's not. Warranty provisions are about the most complex agreements that exist. None of the terms are clearly defined and a company can make any number of arguments to say "no this is not covered."

 

That doesn't answer the problem of the likelihood of discovering the fraud, especially if its a complex legal claim.

 

If it's that complex than you want to file suit. If it's a $30 overcharge, it's not worth the effort or expense to litigate in court, for both sides.

 

[StrangeSox]

What? No it's not. Warranty provisions are about the most complex agreements that exist. None of the terms are clearly defined and a company can make any number of arguments to say "no this is not covered."

 

If something is broken, I know it's broken. If some company is engaging in deceptive advertising, billing, etc. practices, it is much less noticeable and most people aren't going to know that they've been defrauded and deserve compensation.

 

Would I ever think to sue AT&T over $30 in taxes on my free phone? No, and maybe the Concepions would have lost the case anyway, but with the system we have after this court ruling, at most AT&T is out $30 + some legal fees for arbitration vs. having to defend a multi-million dollar class-action suit because most people who would be party to the class-action will be unaware of the fraud or not feel it's worth the individual effort.

 

If it's that complex than you want to file suit. If it's a $30 overcharge, it's not worth the effort or expense to litigate in court, for both sides.

 

that's my (Byers', really) whole point! As long as your systematic practice to f*** people over isn't enough for them to individually arbitrate it, you'll escape liability now. Not so with a class action, but these mandatory binding arbitration clauses present in just about every consumer end-user agreement/contract will almost assuredly ban any class-action arbitration.

 

You don't have a choice to file suit. When you sign that contract, you're agreeing to bring any disputes before an arbitrator.

 

[StrangeSox]

Once you agree to that and once you've decided that you'd rather not go to court, yes. But it's not like companies force arbitration on you in lieu of other alternatives.

 

Yes, they do. That's the whole issue with forced or mandatory arbitration. And many companies are forcing employees into the same situations as well now.

[Jenksismyhero]

Yes, they do. That's the whole issue with forced or mandatory arbitration. And many companies are forcing employees into the same situations as well now.

 

Go read what I posted from the opinion where it summarizes the agreement. You can choose to sue in court before going to arbitration. It's not mandatory.

[StrangeSox]

Go read what I posted from the opinion where it summarizes the agreement. You can choose to sue in court before going to arbitration. It's not mandatory.

 

I've read that, and it doesn't seem to support what you're saying there. Regardless of the specifics of this AT&T contract, since this ruling has broad reach, many of these agreements have mandatory binding arbitration, which means you must go through arbitration first, the arbitration is binding, and only then can you bring a suit.

 

http://en.wikipedia.org/wiki/Mandatory_arbitration

[Jenksismyhero]

If something is broken, I know it's broken. If some company is engaging in deceptive advertising, billing, etc. practices, it is much less noticeable and most people aren't going to know that they've been defrauded and deserve compensation.

 

Would I ever think to sue AT&T over $30 in taxes on my free phone? No, and maybe the Concepions would have lost the case anyway, but with the system we have after this court ruling, at most AT&T is out $30 + some legal fees for arbitration vs. having to defend a multi-million dollar class-action suit because most people who would be party to the class-action will be unaware of the fraud or not feel it's worth the individual effort.

 

So these people didn't notice that they were charged $30 bucks in tax for a free phone? Seems to me they were average people who didn't think that was right, so they made a claim.

 

And at most all of these plaintiffs were out $30 bucks. Why do you think they're entitled to more than that?

 

 

 

 

[StrangeSox]

So these people didn't notice that they were charged $30 bucks in tax for a free phone? Seems to me they were average people who didn't think that was right, so they made a claim.

 

My personal assumption would be that there's nothing wrong with me having to pay taxes on me free phone. This could be wrong, legally, but will I ever bother to spend tens or hundreds of hours in arbitration to challenge AT&T and find out? No, I wont.

 

From the dissent:

See, e.g., Carnegie v.

Household Int’l, Inc., 376 F. 3d 656, 661 (CA7 2004) (“The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a luna­tic or a fanatic sues for $30

 

And at most all of these plaintiffs were out $30 bucks. Why do you think they're entitled to more than that?

 

I don't and haven't said that, though the law does provide for treble damages in some circumstances if deliberate, wide-spread fraud is found, at least in judicial class suits. I also don't think AT&T is entitled to $30 times 1,000,000 customers through fraudulent practices, though, and if class arbitration is banned in the agreements, they'll easily get away with it.

 

Which that right there illustrates the absurdity of the majority's argument. How on earth is a class arbitration so contrary to the idea and goals of arbitration (quick and fair resolution) but having to deal with 1,000,000 individual arbitrations now isn't?

 

[Jenksismyhero]

I've read that, and it doesn't seem to support what you're saying there. Regardless of the specifics of this AT&T contract, since this ruling has broad reach, many of these agreements have mandatory binding arbitration, which means you must go through arbitration first, the arbitration is binding, and only then can you bring a suit.

 

http://en.wikipedia.org/wiki/Mandatory_arbitration

 

My point was that you can force people into arbitration, but you must provide them the choice to sue in court at some point. You can't just say "your only recourse is through arbitration." I don't see what's wrong with that. Don't sign the contract if you don't want to agree to that.

[StrangeSox]

My point was that you can force people into arbitration, but you must provide them the choice to sue in court at some point. You can't just say "your only recourse is through arbitration." I don't see what's wrong with that. Don't sign the contract if you don't want to agree to that.

 

But your point is demonstrably untrue. That's the whole issue with mandatory binding arbitration. Yes, you can go to court after arbitration, but it's very rare and even more rare that the decision is changed. They can and do say "your only recourse is through arbitration." In the RAC ruling last summer, the SCOTUS even ruled that you have to go to arbitration even if you're challenging the whole arbitration clause of the contract. It's absurd.

 

So you're forced to go through mandatory individual arbitration first, and then you can appeal that decision to a judicial review. I'm not clear if you'd ever be able to bring a class suit.

 

And now just about every consumer agreement has these sorts of clauses, and more and more employers are adding them to employment contracts. Now you're forced to pursue arbitration as an individual, which is unlikely and unrealistic over small dollar claims, which protects companies engaging in wide-spread low-individual-dollar fraud. This is a hugely pro-big business ruling, and you haven't made any argument to the contrary.

[StrangeSox]

BTW, in all of the reports, articles and blogs I read on this yesterday, only AT&T is claiming this is pro-consumer. Everyone else, even at Forbes and WSJ, is calling this pro-big business.

[southsider2k5]

That would be a worthwhile experiment. Someone with law experience needs to start filing claims in small claims court every chance they get to see how these companies react. It would be interesting to just inundate corporations with suits all over the country.

[StrangeSox]

This is a pretty good burn in the dissent:

These cases do not concern the merits and demerits of class actions; they concern equal treatment of arbitration contracts and other contracts. Since it is the latter question that is at issue here, I am not surprised that the majority can find no meaningful precedent supporting its decision

 

[Jenksismyhero]

But your point is demonstrably untrue. That's the whole issue with mandatory binding arbitration. Yes, you can go to court after arbitration, but it's very rare and even more rare that the decision is changed. They can and do say "your only recourse is through arbitration." In the RAC ruling last summer, the SCOTUS even ruled that you have to go to arbitration even if you're challenging the whole arbitration clause of the contract. It's absurd.

 

So you're forced to go through mandatory individual arbitration first, and then you can appeal that decision to a judicial review. I'm not clear if you'd ever be able to bring a class suit.

 

And now just about every consumer agreement has these sorts of clauses, and more and more employers are adding them to employment contracts. Now you're forced to pursue arbitration as an individual, which is unlikely and unrealistic over small dollar claims, which protects companies engaging in wide-spread low-individual-dollar fraud. This is a hugely pro-big business ruling, and you haven't made any argument to the contrary.

 

How is it untrue when you admit it to be true? Just because it's rare doesn't mean you don't have that opportunity. The fact is they can force you to try arbitration first, but if you don't like the results you can sue in court. What more does a person need?

 

Also, you're looking at this as though every claim brought by any person against any company ever is based on a wide spread fraudulent practice. At the end of the day arbitration is appropriate, for all sides, because it's cheaper and faster than litigating small disputes in court in 99.9% of cases.

 

And from my skimming of the opinion, it's not barring class action lawsuits. I'm not even seeing where it says that you can sign away that right. It's just saying that the California law that says you can void the arbitration agreement based on unconscionability doesn't jive with Section 2 of the FAA. I think Justice Thomas even says that barring you from being a class member in an arbitration agreement is an issue that's not being addressed in this case and it might need to be briefed and argued in a different case.

Edited April 28, 2011 by Jenksismybitch

[StrangeSox]

How is it untrue when you admit it to be true? Just because it's rare doesn't mean you don't have that opportunity. The fact is they can force you to try arbitration first, but if you don't like the results you can sue in court. What more does a person need?

 

No, you can appeal the arbitration decision, not file a new suit. A person needs the ability for class action when the damages are individually small but widespread, otherwise the company will not be held accountable.

 

And from my skimming of the opinion, it's not barring class action lawsuits. I'm not even seeing where it says that you can sign away that right.

 

If you signed that AT&T contract, you can and did sign that right away since you have to go through individual arbitration to resolve any disputes and you can appeal that decision, but you can't file a new suit in court. You're barred from filing a suit in court, either individual or class.

 

Also, you're looking at this as though every claim brought by any person against any company ever is based on a wide spread fraudulent practice. At the end of the day arbitration is appropriate, for all sides, because it's cheaper and faster than litigating small disputes in court in 99.9% of cases.

 

That has nothing to do with barring class suits as most of these contracts do. And again, kinda runs counter, because one big class arbitration is going to be cheaper and faster than 17 millions individual arbitrations. Or, more likely, the company will never see a claim from 16,999,990 of those they wronged and get to keep the rest of the money they defrauded their customers of.

 

It's just saying that the California law that says you can void the arbitration agreement based on unconscionability doesn't jive with Section 2 of the FAA. I think Justice Thomas even says that barring you from being a class member in an arbitration agreement is an issue that's not being addressed in this case and it might need to be briefed and argued in a different case.

 

If Thomas is saying that, he's arguing against what the main opinion says, because it finds class arbitration is contrary to the goals of arbitration as laid out in the FAA.

And it appears the majority has very weak support for their finding based on precedence, at least.